State of Florida v. Department of Health and Human Services

USCA11 Case: 21-14098 Date Filed: 12/06/2021 Page: 1 of 94

[PUBLISH]

CORRECTED

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-14098-JJ

___________________

STATE OF FLORIDA,

Plaintiff-Appellant,

versus

DEPARTMENT OF HEALTH AND HUMAN SERVICES,

SECRETARY OF THE DEPARTMENT OF HEALTH AND

HUMAN SERVICES,

UNITED STATES OF AMERICA,

U.S. CENTERS FOR MEDICARE AND MEDICAID SERVICES,

ADMINISTRATOR OF THE CENTERS FOR MEDICARE AND

MEDICAID,

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2 Opinion of the Court 21-14098

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Northern District of Florida

D.C. Docket No. 3:21-cv-02722-MCR-HTC

____________________

Before ROSENBAUM, JILL PRYOR, and LAGOA, Circuit Judges.

ROSENBAUM and JILL PRYOR, Circuit Judges:

On November 5, 2021, the Secretary of Health and Human

Services issued an interim rule that requires facilities that provide

health care to Medicare and Medicaid beneficiaries to ensure that

their staff, unless exempt for medical or religious reasons, are fully

vaccinated against COVID-19. See Omnibus COVID-19 Health

Care Staff Vaccination, 86 Fed. Reg. 61,555 (Nov. 5, 2021) (the “in-

terim rule”). Under the interim rule, covered staff must receive

their first dose of a two-dose vaccine or a single-dose vaccine by

December 6, 2021, or request an exemption by that date. Non-ex-

empt covered staff must receive their second dose of a two-dose

vaccine by January 4, 2022.

Florida brought this lawsuit challenging the interim rule. In

the district court, Florida requested a preliminary injunction to bar

the interim rule’s enforcement, which the district court denied.

Florida has appealed the district court’s order denying its motion

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21-14098 Opinion of the Court 3

for a preliminary injunction. This case was presented to us on Flor-

ida’s Time-Sensitive Motion for Injunction Pending Appeal. After

careful review, we denied the motion yesterday. Because of the

time constraints involved, though we denied the motion yesterday,

the attached opinion explains the reasons for our ruling as of the

time that we denied the motion yesterday.

I. FACTUAL BACKGROUND

A. In Response to the Ongoing COVID-19 Public Health

Crisis, the Secretary Issued the Interim Rule Mandating

Vaccines for Healthcare Workers at Medicare and Medi-

caid Facilities.

The United States is currently facing a public health emer-

gency as the result of a novel corona virus, which causes the disease

COVID-19. See 86 Fed. Reg. at 65,519. In the United States, more

than 44 million individuals have been infected with COVID-19 and

over 720,000 have died. See id. COVID-19 is the “deadliest disease

in American history.” Id.

The Secretary recently took steps in administering the Med-

icare and Medicaid programs to protect Americans from the risks

associated with COVID-19. Tens of millions of Americans receive

health care through these federally funded programs. See Azar v.

Allina Health Servs., 139 S. Ct. 1804, 1808 (2019). Medicare, which

is funded entirely by the federal government, covers individuals

who are over age 65 or who have specified disabilities. See id. Med-

icaid, which is funded by the federal government and the States,

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4 Opinion of the Court 21-14098

covers eligible low-income individuals, including those who are el-

derly, pregnant, or disabled. See Garrido v. Dudek, 731 F.3d 1152,

1153–54 (11th Cir. 2013).

Medicare and Medicaid beneficiaries receive health care ser-

vices from a variety of entities including hospitals, skilled nursing

facilities, home-health agencies, and hospices (collectively, “facili-

ties”). To participate in the programs, a facility must enter into a

provider agreement for the applicable program and demonstrate

that it meets the conditions for participation. See 42 U.S.C. §§

1395cc(a), 1396a(a)(27).

For both the Medicare and Medicaid programs, Congress

charged the Secretary with ensuring that participating facilities pro-

tect the health and safety of their patients. For example, the Medi-

care statute authorizes payment for “hospital services,” id.

§ 1395d(a), defining a “hospital” as an institution that meets re-

quirements “the Secretary finds necessary in the interest of the

health and safety of individuals who are furnished services in the

institution. See id. § 1395x(e)(9); see also id. § 1395i-3(d)(4)(B) (im-

posing a similar requirement for skilled nursing facilities). Like-

wise, the Medicaid statute requires that facilities meet health and

safety standards “as the Secretary may find necessary.” Id. §

1396r(d)(4)(B), 1396d(l)(1). In addition, the Medicaid statute incor-

porates by cross reference analogous Medicare standards that grant

the Secretary such authority. See id. § 1396d(h), (l)(1), (o).

Regulations establish detailed conditions of participation in

the Medicare and Medicaid programs. Among other things,

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21-14098 Opinion of the Court 5

facilities must have effective “infection prevention and control pro-

gram[s]” in place to “help prevent the development and transmis-

sion of communicable disease and infections.” 42 C.F.R. § 483.80.

See also id. §§ 416.51, 482.42.

On November 5, the Secretary promulgated an interim rule

to amend the infection-control regulations for facilities that partic-

ipate in Medicare or Medicaid. As described above, this interim rule

generally requires that facilities certified to participate in Medicare

or Medicaid ensure their staff are fully vaccinated against COVID-

19, unless an employee is exempt for medical or religious reasons.

See 86 Fed. Reg. at 61,555, 61,561, 61,572. If a provider fails to com-

ply with the vaccine-mandate requirement, it may be subjected to

enforcement remedies, including civil monetary penalties, the de-

nial of payment for new admissions, or termination of its Medicare

or Medicaid provider agreement. Id. at 61,574.

The Secretary issued the interim rule because he found that

requiring the vaccination of staff against COVID-19 was “necessary

for the health and safety of individuals to whom care and services

are furnished.” Id. at 61,561. Even though many health care work-

ers have been vaccinated against COVID-19, the Secretary found

that vaccination rates remain too low at many health care facilities.

Id. at 61,559. Unvaccinated staff continue to pose a significant

threat to patients because the virus that causes COVID-19 is highly

transmissible and dangerous. Id. at 61,557. The Secretary cited data

reflecting that the virus spreads readily among health care workers

and from health care workers to patients and that such spread is

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6 Opinion of the Court 21-14098

more likely when health care workers are unvaccinated. Id. In ad-

dition, the Secretary found that due to the same factors that quali-

fied them for enrollment (age, disability, and/or poverty), patients

covered by Medicare or Medicaid are “more susceptible” than the

general population “to severe illness or death” if they contract

COVID-19. Id. at 61,609.

The Secretary identified other ways that unvaccinated staff

can jeopardize patients’ access to medical care and services. Id. at

61,558. Fearing exposure to the virus, some patients have refused

care by unvaccinated staff, which limits the ability of providers to

meet the health care needs of their patients. Id. Other individuals

forgo medical care altogether to avoid the possibility of being ex-

posed to COVID-19. Id. And when staff members are exposed to

or infected with COVID-19, they are absent from work, which fur-

ther disrupts patients’ access to medical care. Id. at 61,559.

In issuing the interim rule, the Secretary considered that re-

quiring vaccinations could cause some health care workers to leave

their jobs rather than be vaccinated. But after reviewing empirical

evidence, the Secretary concluded that this concern was overstated

and outweighed by countervailing considerations. Id at 61,569.

Among other things, the Secretary cited evidence showing that af-

ter a large hospital system in Texas imposed a vaccine mandate,

99.5% of its staff received the vaccine. Id. Only a very small number

of workers—153 out of more than 26,000 (or 0.6%)—resigned ra-

ther than receive the vaccine. Id. Similarly, after a Detroit-based

health system instituted a vaccine mandate, it reported that 98% of

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21-14098 Opinion of the Court 7

its 33,000 workers were fully or partially vaccinated or in the pro-

cess of obtaining a religious or medical exemption, with less than

one percent of staff receiving an exemption. Id.

Before issuing the interim rule, the Secretary also considered

whether any alternatives to a vaccine mandate would adequately

protect the health and safety of Medicare and Medicaid patients at

the facilities. See id. at 61,613–14. One of these alternatives was to

limit a vaccination requirement to health care workers who had

not previously been infected with COVID-19. Id. at 61,614. But the

Secretary rejected this alternative because uncertainties remained

about “the strength and length” of immunity for individuals who

had previously been infected. Id. A second alternative was to re-

quire daily or weekly testing of unvaccinated individuals. But the

Secretary rejected this alternative because the evidence showed

that “vaccination was a much more effective infection control

measure” than requiring testing alone. Id. Ultimately, the Secretary

concluded that the vaccine mandate was “the minimum regulatory

action necessary” to protect health and safety. Id. at 61,613.

The Secretary determined that the vaccine mandate require-

ment should go into effect immediately, even though the agency

had not previously given the public notice or an opportunity to

comment. The Secretary found good cause for bypassing the no-

tice-and-comment procedure generally required by 5 U.S.C. § 553

because (1) patients in facilities funded by Medicare and Medicaid

were more likely than the general population to suffer severe ill-

ness or death from COVID-19; (2) there had already been over half

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8 Opinion of the Court 21-14098

a million cases of COVID-19 among health care staff; (3) COVID-

19 infection rates among health care staff increased when the Delta

variant emerged, and (4) COVID-19 cases were expected to spike

in the winter, which is also flu season, creating the risk of combined

infections. Id. at 61,557–59, 61,583–84. Any “further delay in impos-

ing a vaccine mandate,” the Secretary said, would endanger the

health and safety of additional patients and be contrary to the pub-

lic interest.” Id. at 61,584. Although the interim rule went into ef-

fect immediately, the Secretary afforded the public with notice and

an opportunity to comment through January 4, 2022. Id. at 61,601.

B. Florida Filed This Lawsuit Challenging the Interim

Rule.

About two weeks after the interim rule was issued, Florida

filed this lawsuit along with a motion for a preliminary injunction,

seeking to enjoin the Secretary from implementing and enforcing

the interim rule. Florida challenged the rule under the Administra-

tive Procedure Act, claiming that the interim rule exceeded the Sec-

retary’s statutory authority, the Secretary failed to follow proper

notice-and-comment procedures, and the interim rule was arbi-

trary and capricious.

The district court denied Florida’s motion for a preliminary

injunction. It concluded that Florida failed to demonstrate the State

faced an irreparable injury if the injunction was not granted. Flor-

ida asserted that it would be injured if the vaccine mandate went

into effect because health care employees around the state would

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21-14098 Opinion of the Court 9

resign their positions rather than receive a vaccine. The court de-

termined these predictions were “speculative.” Doc. 6 at 9. Florida

also asserted that it operated a large number of healthcare facilities

and thus faced substantial economic harm if these facilities were

unable to comply with the mandate and were cut off from federal

funding as a result. The district court concluded, however, that the

claimed economic injuries were not irreparable based on the “pos-

sibility that adequate compensatory or other corrective relief will

be available at a later date, in the ordinary course of litigation.” Id.

at 9–10 (internal quotation marks omitted). The court further

found that Florida’s claim was speculative given the lack of evi-

dence that healthcare workers would not take vaccines or receive

exemptions from the vaccine requirement.

After the district court ruled, Florida notified the court that

since the filing of its motion for a preliminary injunction the State

had enacted a new statute regarding vaccine mandates. Under the

new Florida statutory scheme, all employers, including the govern-

ment, were barred from imposing COVID-19 vaccine require-

ments on their employees. Employers that violated the statute

were subject to fines, ranging from $5,000 to $50,000 per violation.

Fla. Stat. §§ 112.0441, 381.00317(4)(a).

Florida argued that it faced a further irreparable injury be-

cause under the interim rule, it would be unable enforce its new

statutory scheme barring employers from imposing vaccine man-

dates. The district court was unpersuaded and in a second order on

the motion for preliminary injunction concluded that Florida had

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10 Opinion of the Court 21-14098

failed to establish a substantial likelihood of success on the merits

or a substantial risk of irreparable injury.

Florida appealed the district court’s order denying its mo-

tion for a preliminary injunction. It filed this motion for an injunc-

tion pending appeal.

C. Other States Filed Similar Lawsuits Challenging the In-

terim Rule.

Florida was not the only state to bring a lawsuit challenging

the interim rule requiring COVID-19 vaccinations for healthcare

workers. One group of ten states—Missouri, Alaska, Arkansas,

Iowa, Kansas, Nebraska, New Hampshire, North Dakota, South

Dakota, and Wyoming—challenged the interim rule in district

court in the Eastern District of Missouri. See Missouri v. Biden, No

4:21-cv-1329, 2021 WL 5564501 (E.D. Mo. Nov. 29, 2021). A second

group of ten states—Louisiana, Alabama, Arizona, Georgia, Idaho,

Indiana, Kentucky, Mississippi, Montana, Ohio, Oklahoma, South

Carolina, Utah, and West Virginia—brought a similar lawsuit in

the Western District of Louisiana. Louisiana v. Becerra, No. 3:21-

cv-03970, 2021 WL 5609846 (W.D. La. Nov. 30, 2021).

The district court in Missouri granted the motion for a pre-

liminary injunction and enjoined the federal government from im-

plementing or enforcing the interim rule in the ten plaintiff states.

See Missouri, 2021 WL 5564501, at *15. The district court did not

issue a nationwide preliminary injunction. Id.

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After the district court in this case entered its order denying

a preliminary injunction and the Missouri court entered its order

granting one, the district court in Louisiana entered its own order

granting the plaintiff states’ motion for a preliminary injunction.

The Louisiana court entered a nationwide injunction (save for the

states already covered by the Missouri injunction). See 2021 WL

5609846, at *17. The Louisiana nationwide injunction currently

bars the federal government from implementing or enforcing the

interim rule in Florida.

II. LEGAL STANDARD

An injunction pending appeal is an “extraordinary remedy.”

Touchston v. McDermott, 234 F.3d 1130, 1132 (11th Cir. 2000) (en

banc). Such an injunction “requires the exercise of our judicial dis-

cretion.” Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312,

1317 (11th Cir. 2019). For an injunction pending appeal, the mo-

vant must establish all the following: “(1) a substantial likelihood

that [it] will prevail on the merits of the appeal; (2) a substantial risk

of irreparable injury to the [movant] unless the injunction is

granted; (3) no substantial harm to other interested persons; and

(4) no harm to the public interest.” Touchston, 234 F.3d at 1132.

Because such an injunction is an “extraordinary and drastic rem-

edy,” we may not enter one “unless the movant clearly established

the burden of persuasion as to each of the four prerequisites.”

Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc).

The first two factors are “the most critical.” Nken v. Holder, 556

U.S. 418, 434 (2009). Regarding the first prong, “[i]t is not enough

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that the chance of success on the merits be better than negligible.”

Id. Similarly, as to the second prong, it is not enough simply to

“show[] some possibility of irreparable injury.” Id. at 434–35 (cita-

tion and internal quotation marks omitted).

In evaluating whether Florida can show a substantial likeli-

hood of success on the merits, we consider whether the State is

likely to be able to show that the district court abused its discretion

in denying a preliminary injunction. We thus apply “the usual

standards of review governing our review of the merits of the pre-

liminary injunction.” Lee, 915 F.3d at 1317. Accordingly, we exam-

ine the district court’s decision to deny a preliminary injunction for

an abuse of discretion, reviewing de novo any underlying legal con-

clusions and for clear error any findings of fact. Id.

III. THIS CASE IS NOT MOOT DESPITE THE

NATIONWIDE INJUNCTION ISSUED IN

LOUISIANA, AND PRUDENTIAL CONCERNS

FAVOR OUR DECIDING THE MOTION.

Of the three federal courts considering motions to enjoin en-

forcement of the interim rule, the district court here was the first

to rule. It denied Florida’s motion because the State failed to

demonstrate irreparable injury. While the motion for preliminary

injunction was pending, Florida enacted a statute that barred public

and private employers from enforcing vaccine mandates. The dis-

trict court entered a second order considering the statute and con-

cluded that Florida failed to establish a substantial risk of irrepara-

ble injury or a substantial likelihood of success on the merits.

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21-14098 Opinion of the Court 13

The district court in the Missouri case reached a different

conclusion concerning the facts before it. It granted the motion for

a preliminary injunction and enjoined the federal government

from implementing or enforcing the interim rule in the ten plaintiff

states only. See Missouri, 2021 WL 5564501, at *15.

Then came Louisiana. Without even acknowledging the dis-

trict court’s denial of a preliminary injunction in this case, the Lou-

isiana district court entered a nationwide injunction that excluded

only the ten states subject to the Missouri injunction. See 2021 WL

5609846, at *17.

The Louisiana nationwide injunction, which was in place

when we denied Florida’s motion yesterday, purported to bar the

federal government from implementing or enforcing the interim

rule in Florida, effectively awarding Florida the relief it sought in

the district court and it sought in its motion for injunction pending

appeal, even though Florida was not a party to the Louisiana mat-

ter and even though the Northern District of Florida denied the

State this relief.

Nevertheless, Florida urged us to decide its motion for in-

junction anyway. It noted that the United States had moved to stay

the Missouri order and indicated its expectation that the United

States would seek the same relief in the Fifth Circuit. Based on

these developments, Florida wrote, “Were the nationwide injunc-

tion stayed or narrowed, Florida and its citizens would be without

protection beginning on December 6.” Mot. for Injunction Pend-

ing Appeal at 8. And it asked us “to consider Florida’s motion as

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time sensitive” and “issue a ruling before the December 6 dead-

line.” Id.

We therefore were required to determine whether we could

do so. We concluded that we could. And so, yesterday, December

5, we issued our order denying Florida’s motion and indicated that

our opinion would follow. We now explain why we had jurisdic-

tion to proceed yesterday, despite the Louisiana preliminary in-

junction, and why prudential concerns militated in favor of our de-

cision to rule. We address jurisdictional issues first and then pru-

dential ones.

Article III limits the power of the federal courts to “[c]ases”

and “[c]ontroversies.” U.S. Const. art. III, § 2; see Lujan v. Defs. of

Wildlife, 504 U.S. 555, 559–60 (1992). The jurisdictional concern

here implicates mootness. We have explained that a case becomes

moot when events after its commencement “create a situation in

which the court can no longer give the plaintiff meaningful relief.”

Nat’l Ass’n of Bds. of Pharmacy v. Bd. of Regents of the Univ. Sys.

of Ga., 633 F.3d 1297, 1308 (11th Cir. 2011).

Here, we were required to consider whether the entry of the

Louisiana injunction rendered this case moot. The Louisiana in-

junction purported to enjoin the interim rule throughout the na-

tion—including, of course, in Florida. That fact, on its face, ap-

peared, as practical matter, to moot the pending appeal: if the Lou-

isiana injunction already enjoined the interim rule’s application in

Florida, then Florida’s requested relief here—enjoining enforce-

ment of the interim rule—could accomplish nothing more.

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But Florida’s insistence that we decide this motion raised the

capable-of-repetition-yet-evading-review exception to mootness.

Under this exception, we may review a matter “if (1) the challenged

action is in its duration too short to be fully litigated prior to its

cessation or expiration, and (2) there is a reasonable expectation

that the same complaining party will be subjected to the same ac-

tion again.” United States v. Sanchez-Gomez, ___ U.S. ___, 138 S.

Ct. 1532, 1540 (2018) (internal quotation marks omitted).

Other courts have found this exception to the mootness doc-

trine applicable in similar situations. In California v. U.S. Dep’t of

Health & Hum. Servs., 941 F.3d 410 (9th Cir. 2019), judgment va-

cated on other grounds by Little Sisters of the Poor Saints Peter &

Paul Home v. Pennsylvania, 591 U.S. ___, 140 S. Ct. 2367 (2020),

for example, the district court entered a preliminary injunction

which was to be effective in only designated states. See id. at 420.

After the district court issued that injunction, though, an out-of-

circuit district court issued a similar preliminary injunction, but its

reach was nationwide. See id. at 421. The Ninth Circuit considered

whether, given the out-of-circuit nationwide injunction, the appeal

of the in-circuit, more limited injunction had become moot. See id.

at 421–22. The court concluded it had not because the matter was

capable of repetition yet evading review. Id. at 423.

Noting the short period of time between when the in-circuit

and out-of-circuit district courts had entered their injunctions, the

Ninth Circuit reasoned that it was “clearly too short for the prelim-

inary injunction to be fully litigated prior to its cessation or

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16 Opinion of the Court 21-14098

expiration.” Id. (cleaned up). This situation satisfied the first re-

quirement of the capable-of-repetition-yet-evading-review excep-

tion. As for the second requirement of the exception, the court ob-

served that the out-of-circuit court’s injunction was a preliminary

injunction, so it would expire. Id. And when it did, the court con-

tinued, the defendants there would once again be subjected to the

injunction in the in-circuit case. Id. Although the Ninth Circuit rec-

ognized that the district court could rule in favor of the plaintiffs

on the permanent injunction and could choose to keep the nation-

wide aspect of it intact, it determined that “[t]hat mere possibility

does not . . . undermine our conclusion that, given the many other

possible outcomes in the [out-of-circuit] case, there remains a ‘rea-

sonable expectation’ that the federal defendants will be subjected

to the injunction in this case.” Id. As the court explained, “[a] ‘rea-

sonable expectation’ does not demand certainty.” Id.

Finally, observing that “[t]he Supreme Court has yet to ad-

dress the effect of a nationwide preliminary injunction on an appeal

involving a preliminary injunction of limited scope,” the court

“acknowledge[d] that [it was] in uncharted waters.” Id. But it noted

that its “approach to mootness” was “consistent with the Supreme

Court’s interest in allowing the law to develop across multiple cir-

cuits,” id.—an interest that we discuss more below, in our analysis

of the prudential aspects of reviewing the district court’s order here

denying the preliminary injunction, given the Louisiana prelimi-

nary injunction.

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We think the same reasoning required application of the ex-

ception here. Working backwards under the governing test, we

start with the recognition that a reasonable expectation exists that

Florida would be subjected to the interim rule again. That was so

because a reasonable expectation existed that during its review of

the Louisiana injunction, the Fifth Circuit would, at the very least,

do away with the nationwide aspect of that order.

Of course, we do not purport to review the propriety of the

nationwide aspect of the Louisiana injunction; that’s the Fifth Cir-

cuit’s job. But to assess the applicability of the capable-of-repeti-

tion-yet-evading-review exception, we necessarily had to gauge the

likelihood that the nationwide aspect of the Louisiana injunction

would withstand scrutiny. And when we did that, we concluded

that there was a reasonable expectation that, at the least, the Fifth

Circuit would not uphold the nationwide aspect of the injunction.

Here’s why. To begin with, a federal district court may issue

a nationwide, or “universal,” see Trump v. Hawaii, ___ U.S. ___,

138 S. Ct. 2392, 2425 n.1 (2018) (Thomas, J., concurring) injunction

“in appropriate circumstances.” Texas v. United States, 809 F.3d

134, 188 (5th Cir. 2015), as revised (Nov. 25, 2015). But notably,

those appropriate circumstances are rare. See City of Chicago v.

Barr, 961 F.3d 882, 916 (7th Cir. 2020). A nationwide injunction

may be warranted where it is necessary to provide complete relief

to the plaintiffs, to protect similarly situated nonparties, or to avoid

the “chaos and confusion” of a patchwork of injunctions. Id. at 916–

17 (citing Amanda Frost, In Defense of Nationwide Injunctions, 93

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18 Opinion of the Court 21-14098

N.Y.U. L. Rev. 1065, 1101 (2018) (internal quotation marks omit-

ted)). Or universal relief may be justified where the plaintiffs are

dispersed throughout the United States, when immigration law is

implicated, or when certain types of unconstitutionality are found.

See Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 605

(4th Cir. 2017), as amended (June 15, 2017), vacated and remanded

on other grounds sub nom. Trump v. Int’l Refugee Assistance, ___

U.S. ___, 138 S. Ct. 353 (2017). None of these considerations sup-

ported the nationwide injunction imposed by the Western District

of Louisiana. We review them in turn.

First, the court could have provided complete relief to the

plaintiffs with an injunction limited in scope to the States that were

plaintiffs there. Yet it nonetheless awarded relief to nonparties. Ju-

rists and scholars have called into question both the wisdom and

propriety of granting relief to nonparties. See, e.g., Dep’t of Home-

land Sec. v. New York, ___ U.S. ___, 140 S. Ct. 599, 600 (2020)

(Gorsuch, J., concurring) (“The real problem here is the increas-

ingly common practice of trial courts ordering relief that trans-

cends the cases before them. . . . [T]hese orders share the same basic

flaw—they direct how the defendant must act toward persons who

are not parties to the case.”); see also Samuel L. Bray, Multiple

Chancellors: Reforming the National Injunction, 131 Harv. L. Rev.

417, 421 (2017).

Second, this case raises no concerns that a non-nationwide

preliminary injunction wouldn’t provide the plaintiffs with com-

plete relief because the plaintiffs were not dispersed among the

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21-14098 Opinion of the Court 19

United States or “myriad jurisdictions” like in a nationwide class

action. See Refugee, 857 F.3d at 605. Rather, the plaintiffs were the

fourteen states themselves. So the Louisiana court would have had

no trouble fashioning a remedy that was certain to include all the

plaintiffs. And as a practical matter, the Louisiana court had no

need to worry about protecting similarly situated nonparties. Non-

parties who wanted the same protection (ten states) had already

achieved it through the Missouri injunction. See Missouri, 2021

WL 5564501, at *15. Given the relaxed joinder rules for plaintiffs,

any remaining states that wanted protection from the interim rule

could have obtained it by joining or intervening in either Missouri

or Louisiana. Or, like Florida did here, they could have simply filed

their own cases. So the Louisiana court could have provided the

complete relief that its plaintiff states requested—an injunction

against enforcement of the interim rule against them—without is-

suing a nationwide injunction. Indeed, that is exactly what the Mis-

souri court did.

Third, courts have frequently found that a nationwide in-

junction can be warranted in the immigration law context or when

certain unconstitutionality is found. Neither is implicated here.

Universal injunctions in the immigration context are based

on the need for uniformity in the enforcement of immigration law

and Congress’s desire to create a comprehensive and unified sys-

tem of immigration law. Texas, 809 F.3d at 187–88; see also Refu-

gee, 857 F.3d at 605. The rule at issue here, though—the interim

rule related to vaccination—has nothing to do with immigration.

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20 Opinion of the Court 21-14098

Courts have also held that a nationwide injunction can be

necessary when the challenged law suffers from constitutional in-

firmities implicating individual liberties. Refugee, 857 F.3d at 605

(holding that allowing executive action that violated the Establish-

ment Clause should be enjoined universally because “[i]ts contin-

ued enforcement . . . would only serve to reinforce the message

that Plaintiffs are outsiders, not full members of the political com-

munity”) (internal quotation marks omitted). Here, the plaintiff

states in Louisiana did raise, and the court found a likelihood of

success on the merits of, various constitutional challenges. But

those challenges related to the Spending Clause, Tenth Amend-

ment, Non-Delegation Doctrine, and Anti-Commandeering Doc-

trine. Louisiana, 2021 WL 5609846, at *14–16. They did not impli-

cate threats to constitutionally protected individual liberties such

that nationwide relief would be warranted.

Fourth, any desire on the part of the Louisiana district court

to avoid a patchwork of injunctions was outweighed by the need

for “development in different factual contexts and in multiple deci-

sions by the various courts of appeals.” California v. Azar, 911 F.3d

558, 583 (9th Cir. 2018) (internal quotation marks omitted). When,

as here, a regulatory challenge involves important and difficult

questions of law, it is especially vital that various courts be allowed

to weigh in so that the issues can percolate among the courts. See

Bray, Multiple Chancellors, supra, at 461. As the Supreme Court

has recognized, nationwide injunctions “may have a detrimental

effect by foreclosing adjudication by a number of different courts

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21-14098 Opinion of the Court 21

and judges.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979). The

hasty imposition of a nationwide injunction undermines the judi-

cial system’s goals of allowing the “airing of competing views” and

permitting multiple judges and circuits to weigh in on significant

issues. Dep’t of Homeland Sec., 140 S. Ct. at 600 (Gorsuch, J., con-

curring).

The Louisiana court did not grapple with these factors when

it entered the nationwide injunction. Instead, the entirety of the

Louisiana court’s reasoning for imposing a nationwide—as op-

posed to a more limited—injunction follows:

In addressing the geographic scope of the preliminary

injunction, due to the nationwide scope of the CMS

Mandate, a nationwide injunction is necessary due to

the need for uniformity. Texas, 809 F.3d at 187-88.

Although this Court considered limiting the injunc-

tion to the fourteen Plaintiff States, there are unvac-

cinated healthcare workers in other states who also

need protection. Therefore, the scope of this injunc-

tion will be nationwide, except for the states of

Alaska, Arkansas, Iowa, Kansas, Missouri, New

Hampshire, Nebraska, Wyoming, North Dakota,

South Dakota, since these ten states are already under

a preliminary injunction order dated November 29,

2021, out of the Eastern District of Missouri.

Louisiana, 2021 WL 5609846, at *17.

As we have noted, we concluded that there was a reasonable

expectation that this reasoning would not withstand scrutiny. For

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22 Opinion of the Court 21-14098

starters, it is conclusory. The Louisiana order never explains why

there is a “need for uniformity” here, other than to cite Texas, 809

F.3d at 187–188, without explanation.

But that case has no applicability here. In Texas, the Fifth

Circuit upheld a preliminary injunction that forbade implementa-

tion of the Deferred Action for Parents of Americans and Lawful

Permanent Residents program. See id. In so doing, the court ex-

plained that “the Constitution requires ‘an uniform Rule of Natu-

ralization’;[] Congress has instructed that ‘the immigration laws of

the United States should be enforced vigorously and uniformly’:[]

and the Supreme Court has described immigration policy as ‘a

comprehensive and unified system.’[]” Id. at 187–88 (footnotes

omitted). And of course, it is obvious why the United States—a sin-

gle sovereign—must speak with one voice when it comes to mat-

ters of immigration.

But those considerations are not present with the subject

matter of the Louisiana injunction. The Louisiana order offers no

reason why, as a constitutional, statutory, or practical matter, the

interim rule cannot be in effect in some states but not others. Nor

could we think of any good reason.

Quite simply, this does not appear to be one of those “rare”

situations where a nationwide injunction is warranted or even jus-

tifiable. For those reasons, it seemed to us an eminently “reasona-

ble expectation” that, at the very least, the nationwide aspect of the

Louisiana injunction would be eliminated, and Florida would be

subject to the interim rule upon its taking effect on December 6.

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21-14098 Opinion of the Court 23

Having explained why there was a reasonable expectation

that this situation would recur, we turn to the first requirement

under the capable-of-repetition-yet-evading-review exception: the

very short timeframe. When we denied Florida’s emergency mo-

tion, it was December 5, the day by which we had been asked to

rule because the interim rule was supposed to become effective to-

day, December 6. The government had asked the Fifth Circuit to

decide the appeal in Louisiana by yesterday, December 5. For the

reasons we have explained, at the time we denied Florida’s motion

yesterday, we had a reasonable expectation that the Fifth Circuit

would eliminate the nationwide aspect of the injunction. And if it

did, very little time would remain between then and when Florida

would again be subjected to the interim rule. Because the interim

rule requires immediate vaccination for covered employees for

whom a valid exception does not apply, if we did not decide the

case yesterday, the case would have again become moot—but this

time because the subject employees will have been vaccinated.

A recent Supreme Court opinion involving a similar situa-

tion perhaps suggests that a court outside the jurisdiction that en-

tered a purported nationwide injunction does not lack jurisdiction

to address the same challenge as it arises in that court’s jurisdiction.

In Department of Homeland Security v. Regents of the University

of California, ___ U.S. ___, 140 S. Ct. 1891 (2020), the Supreme

Court reviewed three cases out of three courts in different circuits

that raised the same issue, including two cases where the district

courts had each entered nationwide preliminary injunctions

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24 Opinion of the Court 21-14098

against the government. See id. at 1904. The government appealed

all three rulings. See id. at 1905. While those appeals to the three

circuit courts were pending, the government simultaneously

sought certiorari before judgment. Id. After one circuit court af-

firmed the nationwide injunction, but before rulings issued from

the other two circuits, the Supreme Court granted certiorari and

consolidated the cases. Id. Given the overlapping nationwide in-

junctions, amici had urged the Court to address the propriety of

nationwide injunctions. See, e.g., Brief Amicus Curiae of Citizens

United, et al., Dep’t of Homeland Sec. v. Regents of the Univ. of

Cal., Nos. 18-587 & 18-589. But the Supreme Court chose not to do

so. And in its opinion, though it acknowledged the overlapping na-

tionwide injunctions, see 140 S. Ct. at 1904, it did not comment

further on them.

We are, of course, aware that the Supreme Court’s “decision

to grant cert on one question doesn’t implicitly answer any others

presented.” Babb v. Sec’y, Dep’t of Veterans Affs., 992 F.3d 1193,

1201 (11th Cir. 2021). But considering that courts lack Article III

jurisdiction when a case is moot, we think it likely that, had the

Supreme Court thought one or more of the courts that rendered

the decisions it was reviewing lacked subject matter jurisdiction, it

would have commented on that. This, then, further supports the

proposition that the issue facing this Court fell into the capable-of-

repeating-yet-evading-review exception to mootness, and that this

Court did not lack jurisdiction.

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21-14098 Opinion of the Court 25

Not only did we have jurisdiction here, but also prudential

concerns militated in favor of ruling on the pending motion, de-

spite the Louisiana nationwide injunction. Those concerns impli-

cate comity and what has been described as “percolation.”

First, comity: “The federal courts long have recognized that

the principle of comity requires federal district courts—courts of

coordinate jurisdiction and equal rank—to exercise care to avoid

interference with each other’s affairs.” W. Gulf Mar. Ass’n v. ILA

Deep Sea Local 24, 751 F.2d 721, 728 (5th Cir. 1985). Comity dic-

tates that courts should “avoid rulings which may trench upon the

authority of sister courts.” Id. Principles of comity generally guide

federal courts to “exercise . . . restraint” when an injunction in one

federal proceeding would interfere with another federal proceed-

ing. Brittingham v. U.S. Comm’r, 451 F.2d 315, 318 (5th Cir. 1971).

In particular, as some of our sister circuits have recognized, the is-

suance of a nationwide injunction may create comity problems

when similar, parallel lawsuits involving different plaintiffs are

pending in other district courts. See L.A. Haven Hospice, Inc. v.

Sebelius, 638 F.3d 644, 664 –65 (9th Cir. 2011) (vacating nationwide

injunction in case involving review in several courts of appeals of

challenges to regulation); United States v. AMC Ent., Inc., 549 F.3d

760, 773 (9th Cir. 2008) (vacating portion of nationwide injunction

based on “comity” concerns when Fifth Circuit had “judicially re-

pudiated” the challenge in a separate, parallel case); Va. Soc’y for

Human Life, Inc. v. FEC, 263 F.3d 379, 393 (4th Cir. 2001) (same),

overruled on other grounds by Real Truth About Abortion, Inc. v.

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26 Opinion of the Court 21-14098

FEC, 681 F.3d 544, 550 n.2 (4th Cir. 2012). Here, the Louisiana dis-

trict court never acknowledged that the district court in this case

had already denied Florida’s motion for a preliminary injunction.

It likewise did not consider the comity problems that arose from

effectively awarding relief to Florida that the district court in this

case had already denied.

As to percolation, as we have discussed, when a case raises a

novel and important issue, allowing multiple federal appellate

courts the opportunity to express their views on the issue adds

value. Indeed, the Supreme Court has recognized that the ultimate

resolution of such issues benefits from litigation in multiple cases

because various circuit courts may effectively debate one another

over the proper outcome. See Califano, 442 U.S. at 702 (warning

that nationwide injunctions “may have a detrimental effect by fore-

closing adjudication by a number of different courts and judges”);

United States v. Mendoza, 464 U.S. 154, 160 (1984) (criticizing ap-

proach that would interfere with “the development of important

questions of law” by barring multiple courts of appeals from ex-

ploring a difficult question); see also Dep’t of Homeland Sec., 140

S. Ct. at 600 (Gorsuch, J., concurring) (criticizing the practice of is-

suing nationwide injunctions because it interferes with the tradi-

tional system of case-by-case review that allows “multiple judges

and multiple circuits to weigh in only after careful deliberation,”

which “permits the airing of competing views that aids this Court’s

own decisionmaking process”); Hawaii, 138 S. Ct. at 2425

(Thomas, J., concurring) (stating that nationwide injunctions “are

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21-14098 Opinion of the Court 27

beginning to take a toll on the federal court system . . . [by] pre-

venting legal questions from percolating through the federal

courts”). Here, by evaluating the interim-rule issue anew, we add

to that percolation.

In short, the Louisiana nationwide preliminary injunction

did not deprive us of jurisdiction over this motion for injunction.

Nor did any prudential concerns dictate that we should abstain. In

fact, the opposite is true. So we will turn to the merits of the mo-

tion.

IV. FLORIDA FAILED TO CARRY ITS BURDEN TO

ESTABLISH IT IS ENTITED TO THE

EXTRAORDINARY REMEDY OF AN

INJUNCTION PENDING APPEAL.

Florida has failed to meet its extremely high burden and

clearly establish its entitlement to a preliminary injunction pending

appeal. Having carefully considered the relevant factors, we con-

clude that Florida failed to demonstrate (1) a substantial likelihood

that it will prevail on the merits of its appeal from the denial of a

preliminary injunction; (2) it will suffer irreparable injury absent an

injunction; or (3) the balance of the equities favor an injunction.

A. Florida Failed to Carry Its Burden to Establish a Substantial

Likelihood That It Will Succeed on the Merits of Its Ap-

peal.

We begin with the first of the two most critical factors:

whether Florida established a substantial likelihood that it will

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28 Opinion of the Court 21-14098

succeed on the merits of its appeal challenging the district court’s

denial of a preliminary injunction. Florida carries a heavy burden.

The grant of a preliminary injunction is “the exception rather than

the rule.” United States v. Lambert, 695 F.2d 536, 539 (11th Cir.

1983). “It is not enough that the chance of success on the merits be

better than negligible.” Nken, 556 U.S. at 434. Here, we cannot say

that it is substantially likely that Florida can demonstrate the dis-

trict court abused its discretion when it denied the motion for a

preliminary injunction.

In this lawsuit, Florida challenged the validity of the interim

rule under the Administrative Procedure Act (“APA”). Under the

APA, a court must “hold unlawful and set aside agency action” that

is “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law;” that is in excess of statutory authority; or

that is “without observance of procedure required by law.”

5 U.S.C. § 706(2) (A), (C)–(D). The procedures required by law un-

der the APA generally include that an agency must afford inter-

ested persons notice of proposed rulemaking and an opportunity

to comment before a substantive rule is promulgated. See Chrysler

Corp. v. Brown, 441 U.S. 281, 313 (1979) (citing 5 U.S.C. § 553).

Florida argues that it is likely to succeed on the merits on

appeal of the district court’s orders denying a preliminary injunc-

tion because the Secretary failed to show that he had the statutory

authority to impose a vaccine mandate on healthcare workers,

acted contrary to law by promulgating the interim rule without fol-

lowing notice-and-comment procedures, and acted arbitrarily and

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21-14098 Opinion of the Court 29

capriciously by imposing the vaccine mandate. We are not per-

suaded that Florida has shown that it is substantially likely that it

will succeed on any of these arguments.

1. Florida Failed to Demonstrate It Is Likely to Succeed in

Showing That the Secretary Lacked the Statutory Au-

thority to Issue the Interim Rule.

After reviewing the relevant statutory scheme, we conclude

that Florida failed to carry its burden to show a substantial likeli-

hood that it will prevail on the merits of its claim that the Secretary

lacked the statutory authority to enact the interim rule. The Secre-

tary has express statutory authority to require facilities voluntarily

participating in the Medicare or Medicaid programs to meet health

and safety standards to protect patients. Based on this statutory au-

thority, the Secretary was authorized to promulgate the interim

rule.

In both the Medicare and Medicaid statutes, Congress au-

thorized the Secretary to set standards to protect the health and

safety of patients. For example, the Medicare statute authorizes

payments to be made for “hospital services.” 42 U.S.C. § 1395d(a).

Congress baked into the statutory definition of “hospital” that the

institution must meet any “requirements that the Secretary finds

necessary in the interest of the health and safety of individuals who

are furnished services in the institutions.” Id. § 1395x(e)(9). The

Secretary was acting pursuant to this statutory authority in prom-

ulgating the interim rule: by requiring healthcare workers to be-

come vaccinated against a transmissible and highly deadly disease,

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30 Opinion of the Court 21-14098

he was imposing a “requirement[]” that was “necessary in the in-

terest of the health and safety” of the patients who obtained ser-

vices at federally funded Medicare and Medicaid facilities. Id.; see,

e.g., id. §§ 1395x(e)(9), (f)(2), (aa)(2)(k), (dd)(2)(G); 1396d(h), (l)(1),

(o); 1396r(d)(4)(B).

Florida argues that the Secretary’s decision to impose a vac-

cine mandate for all covered health care workers is foreclosed by a

separate federal statute that prohibits a federal officer from exercis-

ing supervision or control over the practice of medicine, the man-

ner in which medical services are provided, or the operation of an

institution. See 42 U.S.C. § 1395. We agree with the district court

that “[t]his argument misconstrues the nature of the vaccination

mandate.” Doc. 18 at 15. With the interim rule, the Secretary is not

regulating the practice of medicine, the manner in which medical

services are provided, or the operation an institution. As the district

court explained, the Secretary is simply “regulating a federal pro-

gram by requiring facilities that receive federal funding to develop

and implement policies and procedures to ensure the vaccination

of covered healthcare workers and staff for the health and safety of

patients within those facilities.” Id. The interim rule is akin to

longstanding, unchallenged regulations that require facilities to

prevent the spread of infection. See, e.g., 42 C.F.R. §§ 416.51(b),

482.42(a).

The dissent argues that the interim rule violates the major

questions doctrine. Its premise is flawed. As a matter of fact, the

interim rule does not “bring about an enormous and

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21-14098 Opinion of the Court 31

transformative expansion in . . . regulatory authority without clear

congressional authorization.” Dissent at 22 (quoting Util. Air Regal

Grp. v. EPA, 573 U.S. 302, 324 (2014)). First, as the dissent acknowl-

edges, the Medicare and Medicaid statutes give the Secretary the

authority to issue regulations for the “administration” of Medicare

and Medicaid and the “health and safety” of recipients. Id. at 21.

The Secretary has explained how the vaccine mandate furthers

both aspects of his authority. As to administration of Medicare and

Medicaid, it is the very opposite of efficient and effective admin-

istration for a facility that is supposed to make people well to make

them sick with COVID-19. If that happens, more patients will have

to be treated by Medicare and Medicaid. It is also highly inefficient

for facility employees to be out sick with COVID-19. As to health

and safety, COVID-19 is a deadly disease that has killed more than

three quarters of a million Americans in less than two years. It is

also highly transmissible. The regulation reasonably, perhaps nec-

essarily, covers all employees who work at these facilities as a

health and safety measure because if any one of them has COVID-

19 and is present at the facility, she can spread it to the patients,

whether directly or indirectly through other employees.

Second, the dissent argues that “CMS has never before en-

forced a vaccination mandate” and “nothing” in the statutes “indi-

cates” that the agency has such authority. Id. at 23. But by its very

nature, a broad grant of authority such as Congress has given the

Secretary here—which plainly encompasses the Secretary’s ac-

tions—does not require an indication that specific activities are

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32 Opinion of the Court 21-14098

permitted. And it’s no surprise that CMS has never enforced a vac-

cine mandate because vaccinations for healthcare employees have

never been an issue of economic and political significance before

now. Indeed, healthcare workers have long been required to ob-

tain inoculations for infectious diseases, such as measles, rubella,

mumps, and others, see 86 Fed. Reg. at 61567–68, because required

vaccination is a common-sense measure designed to prevent

healthcare workers, whose job it is to improve patients’ health,

from making them sicker. Indeed, mandatory vaccinations for the

public at large have long been held valid. See Jacobson v. Massa-

chusetts, 197 U.S. 11, 35 (1905). So, when it comes to vaccination

mandates, there was no reason for Congress to be more specific

than authorizing the Secretary to make regulations for the “health

and safety” of Medicare and Medicaid recipients. To suggest other-

wise would mean that Congress had to have anticipated both the

unprecedented COVID-19 pandemic and the unprecedented polit-

icization of the disease to regulate vaccination against it. 1

1 The dissent also questions the constitutionality of the federal government’s

imposing a vaccine mandate on healthcare workers, saying that the require-

ment “significantly alter[s] the balance between federal and state power.” Dis-

sent at 35. We disagree. The federal government’s authority to impose the

interim rule’s vaccine requirement derives from the Spending Clause. See U.S

Const. art. I, § 8, cl. 1. When a facility, even one operated by a State, voluntar-

ily chooses to participate in the Medicare and Medicaid programs and receives

federal funding for services provided to beneficiaries, the facility must comply

with the federal law. And, as we explained above, Congress unambiguously

conditioned the payment of funds under the Medicare and Medicaid programs

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21-14098 Opinion of the Court 33

To support their argument that that federal statutes do not

authorize the Secretary to impose a vaccine-mandate requirement

for health care workers, Florida and the dissent also cite to the Su-

preme Court’s recent order in Alabama Association of Realtors v.

Department of Health and Human Resources, ___ U.S. ___, 141 S.

Ct. 2485 (2021). We are not persuaded that the Supreme Court’s

order in Alabama Association of Realtors establishes that the Sec-

retary lacked the statutory authority to issue the interim rule.

In Alabama Association of Realtors, the Court stayed a

lower court order that permitted the Centers for Disease Control

(“CDC”) to extend a nationwide moratorium on evictions due to

the COVID-19 pandemic. Id. at 2486. The CDC claimed the au-

thority to impose the eviction moratorium under the Public Health

Services Act, 42 U.S.C. § 264(a). This statute authorized the CDC

to make and enforce regulations necessary “to prevent the intro-

duction, transmission, or spread of communicable diseases from

foreign countries into the States or possessions, or from one State

or possession into any other State or possession.” Id. at 2487 (quot-

ing 42 U.S.C. § 264(a)). It specified that the types of measures that

could be necessary included inspection, fumigation, disinfection,

sanitation, pest extermination, and destruction of contaminated

animals and articles. The Court rejected the CDC’s argument, con-

cluding that the plain language of that statute, which permitted the

to facilities that comply with “health and safety standards” set by the Secretary.

See Section I-A, supra.

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34 Opinion of the Court 21-14098

CDC to take measures that “directly relate to preventing the inter-

state spread of disease by identifying, isolating, and destroying the

disease itself” did not authorize the CDC to impose the eviction

moratorium. Id. at 2488. It explained that the “downstream con-

nection between eviction and the interstate spread of disease is

markedly different from the direct targeting of disease that charac-

terizes the measures identified in the statute.” Id.

We are not persuaded that the Court’s order in Alabama As-

sociation of Realtors sheds any light here. As an initial matter, in

that case the Court was considering whether a different statutory

scheme authorized the CDC to impose a nationwide eviction mor-

atorium. Nothing in that case bore on whether the Secretary was

authorized to require health care workers at covered facilities to be

vaccinated to protect patient health and safety. Even more im-

portantly, here, both the interim rule and the authorizing statutes

are similar. They both directly relate to efforts to prevent the

spread of disease at facilities treating Medicare or Medicaid patients

to protect the health and safety of those patients.

2. Florida Failed to Demonstrate That It Is Likely to Suc-

ceed in Showing That the Secretary Was Not Permitted

to Bypass the Notice-and-Comment Requirement.

The APA also requires a reviewing court to “hold unlawful

and set aside agency action . . . found to be . . . without observance

of procedure required by law.” 5 U.S.C. § 706(2)(D). Florida argues

that the interim rule should be set aside because the Secretary failed

to comply with the notice-and-comment requirement. But the

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21-14098 Opinion of the Court 35

notice-and-comment requirement does not apply “when the

agency for good cause finds (and incorporates the finding and a

brief statement of reasons therefor in the rules issued) that notice

and public procedure thereon are impracticable, unnecessary, or

contrary to the public interest.” 5 U.S.C. § 553(b). We conclude

that Florida has not established a substantial likelihood that it will

succeed on appeal in demonstrating that the district court abused

its discretion when it rejected Florida’s argument that the Secretary

failed to follow proper procedures.

In the interim rule, the Secretary provided a detailed expla-

nation for why there was good cause for dispensing with the no-

tice-and-comment requirement. The Secretary discussed the ur-

gency presented by the ongoing pandemic, the outbreaks associ-

ated with the Delta variant, and the oncoming influenza season. 86

Fed. Reg. at 61,556–59, 61,583–84. Given these circumstances, the

Secretary determined, a further delay “would endanger the health

and safety of additional patients and be contrary to the public inter-

est.” Id. at 61,584; see id. at 61,612 (estimating that “total lives saved

under this rule may well reach several hundred a month”). We

agree with the district court that the Secretary set forth a sufficient

basis to dispense with the notice-and-comment requirement. See

Sorenson Commc’ns Inc. v. F.C.C., 755 F.3d 702, 706 (D.C. Cir.

2014) (“In the past we have approved an agency’s decision to by-

pass notice and comment where delay would imminently threaten

life or physical property”).

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36 Opinion of the Court 21-14098

Florida says that the district court erred because “after al-

most two years, COVID-19 is a persistent feature of life and cannot

itself constitute good cause” and that to conclude otherwise would

“effectively repeal notice-and-comment requirements for the dura-

tion of the pandemic.” Mot. for Injunction Pending Appeal at 11. 2

But recognizing that good cause existed in this case does not mean

that the COVID-19 pandemic always will justify an agency’s by-

passing the notice-and-comment process. In this case, the Secretary

identified specific reasons why in the environment of healthcare fa-

cilities that provide care to patients covered by Medicare or Medi-

caid the ongoing pandemic constituted good cause for dispensing

with the usual notice-and-comment requirements. 3

2 The dissent, like Florida, argues that the district court erred in concluding

that good cause existed because the Secretary waited until vaccines had been

available to healthcare workers for over a year before adopting the interim

rule. We are not convinced that this is a case where the Secretary waited so

long to issue the interim rule that he cannot rely on the good-cause exception.

This argument ignores that when the vaccines were originally made available,

the Food and Drug Administration (“FDA”) approved them under only an

emergency use authorization. The FDA gave final approval to the first vaccine

late August. It was within the Secretary’s discretion to wait for approval, indi-

cating that the vaccines were safe and effective before requiring health care

employees to receive them. Rather than show a lack of good cause, this fact

demonstrates appropriate caution and thought on the part of the Secretary.

See 86 Fed. Reg. at 61,584 (noting that “[h]ealthcare workers whose hesitancy

was related to [the emergency use authorization] status now have a fully li-

censed COVID-19 vaccination option”).

3 Florida also argues that the district court erred because a separate federal

statute required the Secretary to consult with States before issuing the interim

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21-14098 Opinion of the Court 37

3. Florida Failed to Demonstrate That Is Likely to Succeed

in Showing that the Interim Rule is Arbitrary and Capri-

cious.

Florida argues that the interim rule is arbitrary and capri-

cious. The arbitrary and capricious standard is “exceedingly defer-

ential.” Miccosukee Tribe of Indians of Fla. v. United States,

566 F.3d 1257, 1264 (11th Cir. 2009). A court is not permitted to

substitute its judgment for the agency’s “as long as [the agency’s]

conclusions are rational.” Id. A decision is arbitrary and capricious

only if the factors the agency relied on are not what Congress

would intend, if the agency “entirely failed to consider an im-

portant aspect of the problem,” if the agency offered an explanation

counter to the evidence before the agency, or if the agency action

“is so implausible that it could not be ascribed to a difference in

view or the product of agency expertise.” Id. (internal quotation

marks omitted).

rule. In addition to the APA’s notice-and-comment requirement, federal law

imposes another requirement before the Secretary may issue a new rule: “the

Secretary must consult with appropriate State agencies” when carrying out

functions “relating to determination of conditions of participation by provid-

ers of services.” 42 U.S.C. § 1395z. Florida has not shown that the district court

erred when it concluded that the Secretary satisfied the consultation require-

ment because States will have the opportunity to consult during the ongoing

notice-and-comment period, reasoning that the statute imposed “no temporal

requirement for the necessary consultation to occur before an interim rule is

issued.” Doc. 18 at 10.

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38 Opinion of the Court 21-14098

Because, as shown above, ample evidence supports the Sec-

retary’s determination that facility staff vaccination will provide

important protection for patients, we cannot say that the district

court erred in concluding that the interim rule was not arbitrary or

capricious.

Florida raises a variety of arguments about why the agency

should have reached the opposite conclusion and determined that

the Secretary’s decision to impose a vaccine-mandate requirement

for health care workers was irrational. Florida argues that it was

arbitrary and capricious for the United States to impose a vaccine

mandate instead of requiring that unvaccinated employees rou-

tinely be tested or exempting from vaccination individuals who

have natural immunity from a previous COVID-19 infection. Flor-

ida essentially seeks to substitute its views on epidemiology for the

Secretary’s judgment about the best way to protect the public from

infection. But “[w]e are not authorized to substitute our judgment

for the agency’s as long as its conclusions are rational.” Miccosukee

Tribe, 566 F.3d at 1264. Even if we were to agree with Florida that

these other options were preferable to the vaccine mandate the

Secretary imposed, this would not come close to showing that the

district court erred in concluding that the Secretary’s decision was

not arbitrary or capricious.

Florida also argues that the Secretary failed to adequately

consider the risk that the interim rule will cause unvaccinated

workers to flee the industry rather than submit to vaccination. We

disagree that the Secretary failed to consider this risk. Rather, the

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21-14098 Opinion of the Court 39

Secretary addressed it when he discussed evidence showing that

when large hospital systems and other health care employers im-

posed vaccine mandates, workers responded to the mandates by

getting vaccinated, not leaving their jobs. See 86 Fed. Reg. at

61,569.

After considering all of Florida’s arguments, we see no sub-

stantial likelihood that it will succeed in establishing that the district

court abused its discretion when it denied the States’ motion for a

preliminary injunction.

B. Florida Failed to Establish That It Will Face Irreparable In-

jury Absent an Injunction.

Florida also failed to establish the second “most critical” fac-

tor, Nken, 556 U.S. at 434, that it will face an irreparable injury if

we do not enter an injunction pending appeal. Importantly, the

possibility of an irreparable injury is not enough. See Winter v.

NRDC, 555 U.S. 7, 22 (2008) (explaining that issuing a preliminary

injunction “based only on a possibility of irreparable harm” would

be “inconsistent” with treating a preliminary injunction as a an “ex-

traordinary remedy”).

Florida argues that it faces irreparable injury from the in-

terim rule because by preempting contradictory state law, the rule

intrudes on Florida’s sovereign authority to enforce its own law

barring public and private employers from imposing vaccine man-

dates. But it is black-letter law that the federal government does

not “invade[]” areas of state sovereignty “simply because it

USCA11 Case: 21-14098 Date Filed: 12/06/2021 Page: 40 of 94

40 Opinion of the Court 21-14098

exercises its authority” in a way that preempts conflicting state

laws. Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S.

264, 291 (1981) (rejecting argument that Congress invaded state

sovereignty simply because it exercised its authority in a manner

that “displaces the States’ exercise of their police powers”). 4 Here,

because the Secretary had the authority to issue the interim rule

and federal law preempts conflicting state law, we cannot say that

Florida faces an irreparable injury. Indeed, to conclude otherwise

would mean that a state would suffer irreparable injury from all

law federal laws with preemptive effect. Florida cites no cases es-

tablishing such a broad standard. 5

Florida also argues that it established irreparable injury because the

interim rule’s mandate threatens “to deprive Florida of vital medi-

cal staff, exacerbating an already critical healthcare-staffing short-

age.” Mot. for Injunction Pending Appeal at 18. Florida predicts

that the mandate will cause workers in Florida to quit their jobs

rather than be vaccinated. But the district court found Florida’s af-

fidavits predicting such new staffing shortages as a result of the vac-

cine mandate as “speculative” and “conclusory.” Doc. 6 at 8.

4If the Secretary lacked the authority to issue the interim rule, then Florida

might be able to establish irreparable injury.

5 The district court also correctly pointed out that Florida enacted its statute

after the Secretary issued the interim rule. The district court found that this

timing “suggest[ed] an attempt to alter the status quo by creating a self-in-

flicted irreparable sovereign injury after the fact.” Doc. 18 at 7 (internal quota-

tion marks omitted).

USCA11 Case: 21-14098 Date Filed: 12/06/2021 Page: 41 of 94

21-14098 Opinion of the Court 41

Notably, Florida does not explain why the district court’s findings

were erroneous.

Despite Florida’s failure to address the district court’s find-

ings, the dissent, relying on these declarations, concludes that Flor-

ida faces irreparable harm because State agencies would lose so

many employees at state-operated facilities that the agencies would

experience severe staffing shortages and a disruption in, and reduc-

tions to, the quality of care that patients received at facilities. But

we are not persuaded that Florida came close to carrying its burden

of establishing that such resignations would occur. Some of Flor-

ida’s declarations state that “up to” certain numbers of employees

“may” resign if required to be vaccinated. Doc. 2-3 at 5 (affidavit

from Department of Health employees); see Doc. 2-6 at 5 (similar

affidavit saying “it is possible” that employees for the Agency for

Persons with Disabilities would resign). Other declarations say

nothing more than that “some employees” may resign rather than

be vaccinated. See also Doc. 2-2 at 4 (predicting that “some em-

ployees” of the Department of Children and Families would re-

sign); Doc. 2-4 at 5 (same for employees of Florida Department of

Correction); 2-5 at 4 (same for employees of the Department of

Veterans’ Affairs). This testimony is, as the district court found, en-

tirely speculative; none of it indicates with any degree of certainty

whatsoever that these employees will resign. In crediting this evi-

dence, the dissent never grapples with the evidence showing that

when health care workers were faced with a vaccine mandate go-

ing into effect, “very few workers” actually quit their jobs rather

USCA11 Case: 21-14098 Date Filed: 12/06/2021 Page: 42 of 94

42 Opinion of the Court 21-14098

than be vaccinated, as found by the Secretary. See 86 Fed. Reg. at

61,569. Florida has thus failed to carry its burden of showing an

irreparable injury is likely. 6

Finally, Florida claims that it will suffer an irreparable harm

“as parens patriae for the many Floridians who work in healthcare

and do not wish to receive a vaccine.” Mot. for Injunction Pending

Appeal at 19. But we agree with the district court that Florida does

not face an irreparable injury if employees who choose to work in

a federally funded healthcare facility are forced to abide by the rules

that govern the administration of that federal program. See Com-

monwealth of Mass. v. Mellon, 262 U.S. 447, 485–86 (1923) (“It can-

not be conceded that a state, as parens patriae, may institute judi-

cial proceedings to protect citizens of the United States from the

operation of the statutes thereof.”)

C. Florida Failed to Establish that the Remaining Factors Sup-

port an Injunction.

The last two requirements for a preliminary injunction in-

volve a balancing of the equities between the parties and the public.

Where the government is the party opposing the preliminary

6 Likewise, we are not persuaded that Florida has carried its burden of showing

that, absent an injunction, it will suffer an economic injury that could not be

redressed if the interim rule turns out to be invalid. See Ne. Fla. Chapter of

Ass’n of Gen. Contractors v. City of Jacksonville, 896 F.2d 1283, 1285 (11th

Cir. 1990) (recognizing the “possibility that adequate compensatory or other

corrective relief will be available at a later date” weighs “heavily against a

claim of irreparable harm”).

USCA11 Case: 21-14098 Date Filed: 12/06/2021 Page: 43 of 94

21-14098 Opinion of the Court 43

injunction, its interest and harm—the third and fourth elements—

merge with the public interest. Swain v. Junior, 958 F.3d 1081, 1091

(11th Cir. 2020).

Imposing an injunction to bar enforcement of the interim

rule would harm the public interest in slowing the spread of

COVID-19 and protecting the safety of Medicare and Medicaid pa-

tients and staff. And this interest is particularly compelling within

the setting of the healthcare facilities at issue, where the population

of patients covered by Medicare and Medicaid is more likely than

the general population to experience severe complications if they

contract COVID-19. Indeed, the last thing patients seeking medical

help (and their families and friends who love them) should have to

endure is the infliction of a potentially deadly virus on them by

those who are supposed to be taking care of them, when it could

have been prevented by their caretakers’ obtaining of an FDA-

approved vaccination.7

7 Although the dissent does not dispute that the “public has an interest in stop-

ping the spread of COVID-19,” our dissenting colleague concludes that the

equities weigh in favor of a stay because of “uncertainties” related to the on-

going pandemic. Dissent at 48 (internal quotation marks omitted). The dissent

points to the recent emergence of the Omicron variant and speculates that

currently available vaccines may “offer diminished protection” against this

variant. Id. at 48 n.7. As an initial matter, this is speculation; the dissent cites

nothing to support its assertion about the effectiveness of vaccines against the

Omicron variant. More fundamentally, though, the dissent’s position is flawed

because taken to its logical end, it would mean that there would never be a

public interest in the federal government’s taking proactive steps to protect

USCA11 Case: 21-14098 Date Filed: 12/06/2021 Page: 44 of 94

44 Opinion of the Court 21-14098

V. CONCLUSION

For the reasons set forth above, we DENY Florida’s motion

for an injunction pending appeal.

the public from the COVID-19 virus—or any other deadly virus—because of

the possibility, however remote, that the virus would mutate in the future.

USCA11 Case: 21-14098 Date Filed: 12/06/2021 Page: 45 of 94

21-14098 Judge Lagoa, Dissenting 1

LAGOA, Circuit Judge, dissenting:

I dissent from the panel’s decision to deny the State of Flor-

ida’s motion for an injunction pending its appeal of the district

court’s order denying the State’s motion for preliminary injunc-

tion. The State seeks to enjoin an interim final rule of the Centers

for Medicare and Medicaid Services (“CMS”) mandating COVID-

19 vaccinations for covered staff in most facilities receiving Medi-

care and Medicaid funding (the “mandate”). See Medicare and

Medicaid Programs; Omnibus COVID-19 Health Care Staff Vac-

cination, 86 Fed. Reg. 61,555 (Nov. 5, 2021).

The majority devotes a substantial amount of space to the

issue of nationwide injunctions but does not provide much analysis

of the issues actually presented to us by the State of Florida’s mo-

tion for an injunction pending appeal. For the reasons explained

below, I would grant the State of Florida’s motion.

I. BACKGROUND

A. November 5, 2021, CMS Mandate

CMS primarily administers Medicare, see Cape Cod Hosp.

v. Sebelius, 630 F.3d 203, 205 (D.C. Cir. 2011), and partners with

states to administer Medicaid, see Douglas v. Indep. Living Ctr. of

S. Cal., Inc., 565 U.S. 606, 610 (2012). On September 9, 2021, the

President announced his intention to promulgate federal vaccine

mandates. Nearly two months later, on November 5, 2021, CMS

issued an interim final rule entitled “Medicare and Medicaid Pro-

grams; Omnibus COVID-19 Health Care Staff Vaccination,” which

“revises the requirements that most Medicare- and Medicaid-

USCA11 Case: 21-14098 Date Filed: 12/06/2021 Page: 46 of 94

2 Judge Lagoa, Dissenting 21-14098

certified providers and suppliers must meet to participate in the

Medicare and Medicaid programs” and “establish[es] COVID-19

vaccination requirements for staff at the included Medicare- and

Medicaid-certified providers and suppliers.” 86 Fed. Reg. at 61,555;

see also id. at 61,556 (listing the types of “providers and suppliers”

covered by the mandate). The category of individuals who are con-

sidered covered staff under the interim final rule is extremely

broad—the mandate applies to a wide range of people including

employees, trainees, students, volunteers, and contractors who

provide any care, treatment, or other services for the facility. Id. at

61,570.

The following fifteen categories of Medicare and Medicaid

certified providers and suppliers are covered under the mandate:

(1) Ambulatory Surgical Centers; (2) Hospices; (3) Psychiatric resi-

dential treatment facilities: (4) Programs of All-Inclusive Care for

the Elderly; (5) Hospitals (acute care hospitals, psychiatric hospi-

tals, long term care hospitals, children’s hospitals, hospital swing

beds, transplant centers, cancer hospitals, and rehabilitation hospi-

tals); (6) Long Term Care Facilities (i.e., nursing homes); (7) Inter-

mediate Care Facilities for Individuals with Intellectual Disabilities;

(8) Home Health Agencies; (9) Comprehensive Outpatient Reha-

bilitation Facilities; (10) Critical Access Hospitals; (11) Clinics, reha-

bilitation agencies, and public health agencies as providers of out-

patient physical therapy and speech language pathology services;

(12) Community Mental Health Centers; (13) Home Infusion Ther-

apy suppliers; (14) Rural Health Clinics and Federally Qualified

USCA11 Case: 21-14098 Date Filed: 12/06/2021 Page: 47 of 94

21-14098 Judge Lagoa, Dissenting 3

Health Centers; and (15) End Stage Renal Disease Facilities. Id. at

61,556.

The mandate requires all covered staff to receive the initial

dose of a COVID-19 vaccine by December 6, 2021, and to complete

their “primary vaccination series” by January 4, 2022. Id. at 61,555,

61,573. Covered providers and suppliers that fail to comply with

the mandate “may be subject to enforcement remedies,” including

“civil money penalties, denial of payment for new admissions, or

termination of the Medicare/Medicaid provider agreement.” Id. at

61,574. The mandate also provides for “appropriate accommoda-

tions, to the extent required by Federal law, for employees who

request and receive exemption from vaccination because of a disa-

bility, medical condition, or sincerely held religious belief, practice,

or observance.” Id. at 61,569.

CMS stated that it was issuing the mandate based on its

“broad statutory authority to establish health and safety regula-

tions.” Id. at 61,560. Specifically, CMA claimed its authority was

primarily based on

sections 1102 and 1871 of the Social Security Act (the

Act)[, which] grant[ed] the Secretary of Health and

Human Services authority to make and publish such

rules and regulations, not inconsistent with the Act,

as may be necessary to the efficient administration of

the functions with which the Secretary is charged un-

der this Act and as may be necessary to carry out the

administration of the insurance programs under the

Act.

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4 Judge Lagoa, Dissenting 21-14098

Id.; accord id. at 61,567; see 42 U.S.C. §§ 1302, 1395hh (codifying

sections 1102 and 1871 of the Social Security Act). CMS also ex-

plained that, in its “discussions of the provider- and supplier-spe-

cific provisions” in the mandate, it “set out the specific authorities

for each provider or supplier type.” See 86 Fed. Reg. at 61,560,

61,616–27. CMS noted there were “concerns about health care

workers choosing to leave their jobs rather than be vaccinated,”

but concluded there was “insufficient evidence to quantify and

compare adverse impacts on patient and resident care associated

with temporary staffing losses due to mandates and absences due

to quarantine for known COVID-19 exposures and illness.” Id. at

61,569. The mandate goes into effect on December 6, 2021—one

month after its issuance.

In issuing the mandate, CMS waived the notice-and-com-

ment period under the Administrative Procedures Act (“APA”) on

the basis of “good cause.” See id. at 61,583–86; 5 U.S.C. § 553(b)(B).

CMS found the APA’s normal notice-and-comment procedures to

be “impracticable and contrary to the public interest” based on “a

combination of factors, including but not limited to failure to

achieve sufficiently high levels of vaccination based on voluntary

efforts and patchwork requirements, potential harm to patients

from unvaccinated health-care workers, and continuing strain on

the health care system and known efficacy and safety of available

vaccines.” 86 Fed. Reg. at 61,586. CMS also stated the mandate

preempted state and local laws as applied to Medicare- and Medi-

caid-certified providers and suppliers. Id. at 61,568.

USCA11 Case: 21-14098 Date Filed: 12/06/2021 Page: 49 of 94

21-14098 Judge Lagoa, Dissenting 5

B. The Proceedings Before the District Court

On November 17, 2021, the State filed a complaint and a

motion for a temporary restraining order (“TRO”) or preliminary

injunction as to the Mandate. In support of its motion, the State

attached six sworn affidavits from the following state agency rep-

resentatives: (1) Kimberly Smoak, the Deputy Secretary for Health

Quality Assurance (“HQA”) at the Florida Agency for Health Care

Administration (“AHCA”); (2) Erica Thomas, the Assistant Secre-

tary for Substance Abuse and Mental Health at the Florida Depart-

ment of Children and Families (“DCF”); (3) Mark Lander, the In-

terim Deputy Secretary for County Health Systems at the Florida

Department of Health (“DOH”); (4) Carl Kirkland Jr., the Deputy

Director of Institutional Operations for the Florida Department of

Corrections (“FDC”); (5) Robert Asztalos, the Deputy Executive

Director of the Florida Department of Veterans’ Affairs (“FDVA”);

and (6) Tom Rice, the Deputy Executive Director for Programs at

the Florida Agency for Persons with Disabilities (“APD”). The fol-

lowing unrebutted evidence was presented to the district court:

1. Kimberly Smoak, Deputy Secretary for HQA at AHCA

Smoak attested to the following in her affidavit. AHCA, “a

department of the Executive Branch of the government of the State

of Florida,” is “the chief health policy and planning entity for the

state” and “charged with health facility licensure, inspection and

regulatory enforcement and the administration of the Medicaid

program.” Doc. 2-1 at 2. On behalf of CMS, AHCA’s division of

HQA conducts surveys of healthcare facilities to determine

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6 Judge Lagoa, Dissenting 21-14098

whether they are in compliance with federal law governing Medi-

care providers. Id. at 3. When serious violations are found or re-

main uncorrected, AHCA sends that information to CMS, which

“utilizes a range of federal enforcement mechanisms from fines to

termination of facilities’ Medicare provider agreements” against

the noncompliant facilities. Id. at 3–4. If CMS terminates a facility’s

Medicare agreement, then AHCA must terminate the facility’s

Medicaid provider agreement as well. Id. at 4. The mandate re-

quires state surveyors, such as AHCA, to determine if providers

and suppliers are compliant with the mandate’s requirements. Id.

AHCA’s HQA receives federal funding from CMS to conduct fed-

eral survey activity, and “[i]f AHCA were to refuse to enforce the

mandate and withdraw from participation in its agreement with

[CMS],” HQA would likely lose all federal funds relating to survey-

ing and certification. Id. Additionally, the federal government

could terminate the agreement in whole or in part or limit the

scope of the parties’ agreement, which “would result in a commen-

surate loss of federal funding.” Id.

2. Erica Thomas, Assistant Secretary for Substance Abuse and

Mental Health at DCF

Thomas attested to the following. “DCF is the designated

mental health authority for the State,” exercising “executive and

administrative supervision over all psychiatric residential treat-

ment facilities in collaboration with [AHCA].” Doc. 2-2 at 2. “Fail-

ure on the part of a psychiatric residential treatment facility to com-

ply with the mandate can subject the facility to enforcement

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21-14098 Judge Lagoa, Dissenting 7

remedies imposed by CMS and other remedies available under

Federal law,” e.g., “civil money penalties, denial of payment for

new admissions, or termination of the Medicare/Medicaid pro-

vider agreement.” Id. at 3. DCF operates six psychiatric residential

treatment facilities and employs approximately 3,013 employees in

those facilities. Id. “DCF currently maintains staffing shortages at

all of [its] facilities” based on “wage pressure from an improving

job market and larger trends in healthcare,” including “statewide

shortages of nurses and psychiatric providers.” Id. This was espe-

cially true for rural areas, where “there is limited workforce and it

is difficult to find qualified employees.” Id. Overall, DCF is “expe-

riencing difficulty recruiting and retaining nursing staff due to com-

peting wage and benefit pressure in the private market,” with a

turnover rate exceeding 20%, and DCF’s facilities are “currently ex-

periencing a staffing crisis.” Id. at 3–4. Because some of DCF’s

unvaccinated employees would refuse vaccination, the mandate

“will further amplify the staffing shortage and the facilities will not

be able to provide effective treatment for the patients or a safe en-

vironment for both patients and staff.” Id. at 4. Additionally, the

reduction in staff at Florida’s state mental health treatment facilities

would result in longer waiting periods in jail for forensic patients

seeking treatment who are charged with felony offenses and deter-

mined to be not guilty by reason of insanity or incompetency. Id.

DCF would lose approximately $6.7 million in funding, which is

“critical to support patient services and treatment,” if it does not

comply with the mandate. Id.

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8 Judge Lagoa, Dissenting 21-14098

3. Mark Lander, Interim Deputy Secretary for County Health

Systems at DOH

Lander attested as to the following. DOH is “responsible for

the state’s public health system, providing public health services

through its County Health Departments.” Doc. 2-3 at 2. DOH

operates “Federally Qualified Health Centers” (“FQHC”), includ-

ing FQHCs in Bradford, Union, and Walton Counties, in conjunc-

tion with its County Health Departments. Id. at 3. As to the

FQHCs in Bradford and Union Counties, “up to 12 employees may

be lost to employment” as a result of the mandate. Id. Most of

those employees “provide services that impact direct patient care,”

and “[i]t would take at least 90 days to hire employees to replace

them in the current labor market.” Id. “The anticipated vacancy

time could extend several months creating a domino effect that

would increase clinical wait times and loss of services,” “dental and

prenatal services may be delayed,” and the delay in services would

result in “a negative impact for clients served by” those two

FQHCs. Id. at 3-4. Noncompliance with the mandate would result

in a projected loss of Medicare and Medicaid revenue to the Brad-

ford and Union FQHCs, and the lack of funding would result in a

“workforce reduction/separation,” “an approximate 50% reduc-

tion in services and access,” and a negative impact to patient access.

Id. at 4.

As to the FQHC in Walton County, that facility would lose

“up to 57 employees” upon implementation of the mandate, which

“could cause a serious disruption in services” as most of those

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21-14098 Judge Lagoa, Dissenting 9

employees provide direct patient care and hiring replacements

“would take at least 90 days” given the current labor market. Id. at

5. “Approximately 70% of the clinical licensed practical nurses are

unvaccinated” in the FQHC in Walton County, and the FQHC

could lose “frontline employees, including clerical and medical rec-

ords support as well as medical providers.” Id. This would result

in clinicians being “required to work up their own clients,” slowing

down the process and reducing availability of appointments. Id.

Additionally, “with the loss of 57 employees, services will be dis-

rupted (cancelled or significantly delayed),” which would result in

“a negative impact for clients.” Id. Registered nurses and licensed

practical nurses positions were “difficult” to fill based on the de-

mand in Florida, and “[t]he months taken to hire and train these

positions would expend valuable time that is needed to treat pa-

tients who have left critical chronic illnesses go unchecked during

the pandemic.” Id. And noncompliance with the mandate by the

FQHC in Walton County would result in the loss of Medicare and

Medicaid revenue, which in turn would lead to a reduction of staff

and patient services. Id. at 6.

4. Carl Kirkland Jr., Deputy Director of Institutional Operations

for FDC

Kirkland attested to the following. FDC is “responsible for

the supervisory and protective care, custody, and control of the in-

mates, buildings, grounds, property, and all other matters pertain-

ing to the correctional and other facilities and programs for the im-

prisonment, correction, and rehabilitation of adult offenders.”

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10 Judge Lagoa, Dissenting 21-14098

Doc. 2-4 at 2. FDC’s responsibilities include transporting inmates

who require medical care that cannot be provided within FDC’s

prison “to outside hospitals where they received medical treatment

and are thereafter transported back to prison.” Id. at 3. FDC has

agreements with two hospitals—Jacksonville Memorial Hospital

and North Shore Hospital in Miami—“that have a dedicated, se-

cure unit within the hospital for care of inmates,” and “FDC pro-

vides a sufficient number of correctional officers to supervise

[those] inmates.” Id. FDC also has a medical vendor, Centurion,

which contracts “with at least 57 hospitals throughout the state to

provide medical services to inmates.” Id. FDC has experienced a

staff shortage over the past few years, as shortages “have greatly

increased since the outbreak of COVID-19,” and “[t]he mandate

would undoubtedly exacerbate this staff shortage issue.” Id. at 4.

As to Jacksonville Memorial Hospital, the Reception and

Medical Center, which was FDC’s institution responsible for secu-

rity staffing at that hospital, “had 31 vacancies” on the roster—

equivalent to an “absence of 35.63% of FDC’s required uniformed

staff.” Id. Given these vacancies, “FDC’s ability to provide care in

line with the Eighth Amendment” was threatened, and the man-

date would “further exacerbate[]” the issue, as some of its staff at

Jacksonville Memorial Hospital would quit or request to work at

other facilities to avoid the mandate. Id. at 5. “This, in turn, would

limit the pool of available replacements/supplemental staff to staff

the hospital,” resulting “in a delay of care, or worse,” and hindering

“FDC’s constitutional obligations to ensure minimally adequate

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21-14098 Judge Lagoa, Dissenting 11

medical care.” Id. As to North Shore Hospital in Miami, it would

experience negative impacts similar to those affecting Jacksonville

Memorial Hospital. Id. And as to Centurion, FDC’s medical ven-

dor which contracts with “at least 57 hospitals throughout [Florida]

to provide medical services to inmates,” “[m]andating vaccines for

FDC staff across [the State of Florida] who would potentially be

responsible for transport of inmates to hospitals or who would re-

main with inmates at the hospital, would pose a significant chal-

lenge to an already understaffed FDC.” Id. The requirement

would “likely result in delay of care, or worse.” Id.

5. Robert Asztalos, the Deputy Executive Director of the FDVA

Asztalos attested to the following. FDVA “advocate[s] for

Florida veterans and link[s] them to services, benefits, and sup-

port.” Doc. 2-5 at 2. FDVA operates six “State Veterans’ Nursing

Homes” (“SVNH”) throughout Florida. Id. Each of the SVNHs

“have struggled with staffing shortages, especially direct care staff,”

and the pandemic had exacerbated the shortage. Id. at 4. FDVA

may lose federal funding from CMS if it does not comply with the

mandate. Id. If FDVA did comply with the mandate, “some em-

ployees may leave FDVA employment,” and, consequently,

“FDVA would need to increase [its] use of nursing staffing agencies

to cover any staff shortages,” increasing its operating costs. Id. If

a substantial number of employees leave FDVA, it would consider

reducing occupancy rates in its SNVHs, thereby decreasing the

number of veterans admitted to its facilities. Id.

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12 Judge Lagoa, Dissenting 21-14098

6. Tom Rice, the Deputy Executive Director for Programs at

APD

Rice attested to the following. APD is “responsible for coor-

dinating and providing services to Floridians with intellectual and

developmental disabilities, including the operation of state-oper-

ated institutional programs and the programmatic management of

Medicaid waivers established to provide home and community

based services” to those individuals. Doc. 2-6 at 2. APD operates

two “Intermediate Care Facilities for Individuals with Intellectual

Disabilities” and “employs 1,092 direct care staff, registered nurses,

food service, maintenance, administrative and management staff,”

who would be subject to the mandate, at those facilities. Id. at 3–

4.

The pandemic “exacerbated existing staffing challenges” at

APD’s intermediate care facilities, with “approximately 32.34% of

positions” being vacant despite ongoing recruiting and retention

efforts. Id. at 5. And the mandate would “compound these existing

recruiting and retention efforts.” Some of APD’s employees have

“chosen not to be vaccinated,” and “[b]ased on the responses to a

survey conducted . . . and the indications of staff,” APD would “lose

about 10% of [its] total filled positions on average at both facilities,

due to the mandate.” Id. For example, at one of its facilities, “194

out of 599 filled positions are not vaccinated,” and “close to 95% of

the 194 could resign.” Id. “Widespread resignations of existing

staff, coupled with the inability to replace such employees, would

most importantly place the health and safety of residents at risk, as

USCA11 Case: 21-14098 Date Filed: 12/06/2021 Page: 57 of 94

21-14098 Judge Lagoa, Dissenting 13

well as risk coming out of compliance with [required] staffing ra-

tios.” Id. Staffing reassignments to ameliorate the resulting staffing

shortage would “further increas[e] the risk of burn out and resigna-

tions [of those staff members] due to more favorable employment

or low morale.” Id. at 6. These staffing issues would also “severely

impact[]” the routines of the residents at the intermediate care fa-

cilities, “likely leading to distress and negative health outcomes.”

Id. Additionally, failure to comply with the mandate could result

in loss of federal funding via the Medicare and Medicaid programs.

Id. at 5–6.

APD also operates two “forensic facilities,” and its employ-

ees at those facilities will likely be subject to the mandate as the

facilities are located “on the grounds of other licensed facilities di-

rectly subject to the [mandate].” Id. at 6–7. APD’s forensic facilities

suffer from the same personnel issues as its intermediate care facil-

ities. Id. at 7.

****

The district court denied the State’s motion on November

20, 2021, concluding that the State failed to make an adequate

showing that the State would suffer irreparable injury harm with-

out a TRO or preliminary injunction prior to December 6, 2021.

The district court found that the agency representatives’ state-

ments in their affidavits were merely “opinions” without “support-

ing factual evidence” such that they were “speculative and may be

disregarded as conclusory.” It further found that statements re-

garding employees’ intent to resign if required to be vaccinated

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14 Judge Lagoa, Dissenting 21-14098

were “hearsay.” As to the agencies losing federal funding, which

the State asserted would result in loss of services and patient care

as well as longer waits and drives for patients, the district court con-

cluded that any economic loss of funding was not irreparable, as

the funding could be remedied and restored in the ordinary course

of litigation. The district court also found that there was no evi-

dence suggesting that the anticipated loss of federal funding from

noncompliance would immediately occur on December 6, 2021,

“because the asserted loss of staff is speculative, the affidavits fail

take to into account any impact from the availability of the exemp-

tion process provided in the [mandate], and even if noncompliance

occurs, any potential termination of funding would not occur on

December 6.” Finally, addressing the State’s argument that there

was irreparable harm to its own sovereignty if its state laws and

policies were disregarded, the court noted that Florida had refer-

enced no law or policy, as the Florida Legislature was only contem-

plating legislation to prohibit vaccine mandates.

On November 24, 2021, the State filed a notice of appeal

with this Court, as well as a motion for an injunction pending ap-

peal in the district court. On November 27, 2021, the district court

denied the motion for an injunction pending appeal but sua sponte

reinstated the State’s request for preliminary injunction, explaining

that its November 20 order was only intended to address the State’s

request for a TRO. The district court noted the State’s new argu-

ment, i.e., that Florida had enacted a law on November 18, 2021,

which prohibited private and public employer COVID-19

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21-14098 Judge Lagoa, Dissenting 15

vaccination mandates, and that the mandate’s preemption of the

state law demonstrated an irreparable sovereign injury because the

mandate precludes the State from enforcing its own law and forces

state agencies to choose between which law to follow and which

to violate. See Fla. Stat. §§ 308.00317, 112.0441 (2021). The district

court stated that it would consider the effect of the newly enacted

law and scheduled an evidentiary hearing on the matter. The par-

ties, however, filed a joint motion in the district court to waive

briefing and the hearing, which the district court granted. The

State then filed the instant motion for an injunction pending appeal

with this Court.

On December 1, 2021, the district court denied the State’s

request for a preliminary injunction to prevent implementation of

the mandate and specifically addressed the State’s new law “in aid

of the appeal.”1 The district court noted that the State had exer-

cised its sovereign lawmaking powers to broadly prohibit employ-

ers from imposing COVID-19 vaccination mandates on their em-

ployees, but that the mandate, by its terms, preempted Florida’s

law with regard to covered healthcare staff in Medicare- or Medi-

caid-participating facilities. Relying on Jacobson v. Massachusetts,

1

See United States v. Diveroli, 729 F.3d 1339, 1341 (11th Cir. 2013) (“When an

appeal is filed, ‘the district court is divested of jurisdiction to take any action

with regard to the matter except in aid of the appeal.’” (quoting Shewchun v.

United States, 797 F.2d 941, 942 (11th Cir. 1986))).

USCA11 Case: 21-14098 Date Filed: 12/06/2021 Page: 60 of 94

16 Judge Lagoa, Dissenting 21-14098

197 U.S. 11 (1905), 2 the district court explained that, while the man-

date had far-reaching impacts because many facilities accepted fed-

eral funding under the Medicare and Medicaid programs, vaccina-

tion mandates generally had not been found to be unlawful or un-

constitutional. It also explained that the mandate provided medi-

cal- and religious-related exemptions. As such, the district court

found that the State did not have a parens patriae interest in shield-

ing employees who choose to work in federally-funded healthcare

facilities from rules governing the administration of the federal pro-

gram.

The district court then turned to the State’s argument that

the conflict between federal and state law would force state agen-

cies to decide, by December 6, which law to follow. The district

court explained that if there was no likelihood that the mandate

would be found unlawful on the merits, the conflict of choice faced

by the state agencies was eliminated. Turning to the success on the

merits factor, the district court rejected all of the State’s arguments.

As to the State’s consultation argument, the district court con-

cluded that CMS’s interpretation of 42 U.S.C. § 1395z to have no

temporal requirement for consulting with state agencies would be

given Chevron3 deference. The district court also rejected the

2 As discussed below, Jacobson addresses a state’s power to mandate vaccina-

tion, not the federal government’s power to do so.

3

See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–

44 (1984).

USCA11 Case: 21-14098 Date Filed: 12/06/2021 Page: 61 of 94

21-14098 Judge Lagoa, Dissenting 17

State’s notice-and-comment argument, stating that CMS’s “de-

tailed” explanation in the mandate “based on the urgency pre-

sented by the ongoing pandemic, the 2021 outbreaks associated

with the Delta variant, and the oncoming influenza season” estab-

lished “good cause” under § 553(b)(B) of the APA to waive the no-

tice-and-comment procedures normally required.

The district court also rejected the State’s argument that the

mandate was arbitrary and capricious due to CMS’s failure to con-

sider less intrusive alternatives because CMS explained its reason-

ing, discussed the considered alternatives, and explained why they

were unworkable and because CMS’s policy choice between those

alternatives was likely to be accorded deference. It found that the

State, at this early stage, had failed to present evidence to show

CMS’s decision ran counter to, or lacked a rational connection to,

the factual evidence before the agency. The district court similarly

rejected the State’s argument that CMS was unable to issue the

mandate under 42 U.S.C. § 1395 because CMS was not regulating

the practice of medicine, the healthcare that may be provided in

facilities that accept federal funds, the manner in which medical

services are provided, or the operation of the institution or its em-

ployees. Rather, the district court explained that CMS is regulating

“a federal program by requiring facilities that receive federal fund-

ing to develop and implement policies and procedures to ensure

the vaccination of covered healthcare workers and staff for the

health and safety of patients within those facilities” and these re-

quirements were not expressly foreclosed by the statute.

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18 Judge Lagoa, Dissenting 21-14098

The district court also found the State’s Spending Clause ar-

gument was without merit. While the State asserted that any con-

ditions on Medicare and Medicaid funding must have been dis-

closed to it from the beginning, the district court stated it was “in-

conceivable that every facet of [those] program[s] would have been

known and agreed to from the beginning” and that the mandate

was unambiguous and did not “present an immediate all or noth-

ing penalty.” Thus, because the mandate was related to the safe

and efficient administration of federal programs, did not alter or

expand existing programs, and provided an array of penalties for

noncompliance, the district court concluded there was little likeli-

hood of success on the Spending Clause claim.

As to the final two factors for an injunction, the district court

found there was a public safety interest—“the safety of Medicare

and Medicaid patients and staff administering the program

throughout this pandemic, . . . and the need to slow the spread of

the virus, are greatly enhanced by virtue of the COVID-19 vac-

cine”—that was “especially compelling within the context of

healthcare facilities” and weighed heavily on the side of denying

injunctive relief. The district court noted that the State had not

denied the benefits of the vaccine nor any public health benefit to

its citizens from enforcement of its new law prohibiting COVID-19

vaccine mandates by employers. Thus, the district court concluded

the balance of equities weighed against granting the injunction.

Accordingly, while the State’s enactment of its law added a

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21-14098 Judge Lagoa, Dissenting 19

sovereign interest to its analysis, the district court determined a

preliminary injunction was not warranted on the record before it.

II. ANALYSIS

Pursuant to Federal Rule of Appellate Procedure 8(a)(2), a

party may file a motion with the court of appeals seeking an injunc-

tion pending appeal. Here, the State of Florida has appealed the

district court’s decision denying its motion for a preliminary injunc-

tion and now seeks to enjoin the CMS vaccine mandate during the

pendency of its appeal. “[T]he traditional stay factors . . . govern a

request for a stay pending judicial review.” Nken v. Holder, 556

U.S. 418, 426 (2009). Thus, the party seeking an emergency stay or

injunction pending appeal “must show: (1) a substantial likelihood

that they will prevail on the merits of the appeal; (2) a substantial

risk of irreparable injury to the intervenors unless the injunction is

granted; (3) no substantial harm to other interested persons; and

(4) no harm to the public interest.” Touchston v. McDermott, 234

F.3d 1130, 1132 (11th Cir. 2000); accord Nken, 556 U.S. at 426.

While no single factor is determinative, “[o]rdinarily the first factor

is the most important.” Garcia-Mir v. Meese, 781 F.2d 1450, 1453

(11th Cir. 1986). However, under our precedent, the movant need

not always show that he probably will succeed on the merits of his

appeal. Id. Instead, where the “balance of the equities weighs

heavily in favor of granting the [injunction],” the movant need only

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20 Judge Lagoa, Dissenting 21-14098

show a “substantial case on the merits.” Ruiz v. Estelle, 650 F.2d

555, 565 (5th Cir. Unit A. 1981). 4

In its motion for an injunction pending appeal, the State con-

tends that it has made a sufficient showing as to each of the factors

for the entry of an injunction pending appeal. I agree that the State

of Florida has satisfied its burden as to each factor and that each of

these factors favors granting the injunction pending judicial re-

view. I begin with the first factor: whether the State of Florida’s

challenges to CMS’s vaccine mandate are substantially likely to suc-

ceed on the merits of the appeal.

A. Substantial Likelihood of Success on the Merits

1. CMS’s statutory authority to issue the mandate.

In challenging CMS’s vaccine mandate, the State of Florida

contends that Congress has not provided CMS the statutory au-

thority to enact the mandate at issue here. Under the Administra-

tive Procedure Act, we must “hold unlawful and set aside agency

action . . . found to be . . . in excess of statutory . . . authority.” 5

U.S.C. § 706(2)(C). It is well established that “an agency literally

has no power to act, let alone pre-empt the validly enacted legisla-

tion of a sovereign State, unless and until Congress confers power

upon it.” La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 357 (1986).

4

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc),

this Court adopted as binding precedent all decisions of the former Fifth Cir-

cuit handed down prior to October 1, 1981.

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21-14098 Judge Lagoa, Dissenting 21

CMS is part of the Executive Branch—specifically, the Department

of Health and Human Services (“HHS”)—and CMS therefore must

derive its regulatory powers from Congress. CMS claims it derived

its purported authority to issue the mandate via the Social Security

Act and CMS’s general authorization to administer Medicare and

Medicaid, primarily invoking 42 U.S.C. §§ 1302 and 1395hh as the

statutory authority. See 86 Fed. Reg. at 61,560, 61,567.

Congress gave the HHS Secretary the authority to “make

and publish such rules and regulations . . . as may be necessary to

the efficient administration of the functions” of Medicare and Med-

icaid. See 42 U.S.C. § 1302(a); see also 42 U.S.C. § 1395hh(a). Be-

low, the district court determined that:

This broad rulemaking authority is entitled to sub-

stantial deference, and “considerable weight” is given

to the agency’s “construction of a statute it is en-

trusted to administer.” Chevron, U.S.A., Inc. v. Nat.

Res. Def. Council, Inc., 467 U.S. 837, 842–44 (1984)

(stating where Congress has not spoken directly on an

issue but given an administrative agency the power to

administer a program, this power necessarily includes

the formation of policy and the making of rules to fill

any gap left by Congress).

But this determination is untenable. While Congress has au-

thorized the Secretary of Health and Human Services general au-

thority to issue regulations for the “administration” of Medicare

and Medicaid and the “health and safety” of recipients, there is no

dispute that there is no specific congressional authorization for the

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22 Judge Lagoa, Dissenting 21-14098

mandate. See Ala. Ass’n of Realtors v. Dep’t of Health & Hum.

Servs., 141 S. Ct. 2485, 2486 (2021) (“It would be one thing if Con-

gress had specifically authorized the action that the CDC has taken.

But that has not happened.”).

Contrary to the district court’s assertion, a federal agency

cannot “bring about an enormous and transformative expansion

in . . . regulatory authority without clear congressional authoriza-

tion.” Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014). In-

deed, the major questions doctrine instructs that courts “expect

Congress to speak clearly if it wishes to assign to an agency deci-

sions of vast ‘economic and political significance.’” Util. Air, 573

U.S. at 324 (quoting FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120, 160 (2000)); accord Ala. Ass’n of Realtors, 141 S. Ct.

2489 (relying on Utility Air); see also Whitman v. Am. Trucking

Ass’ns, 531 U.S. 457, 468 (2001) (“Congress . . . does not, one might

say, hide elephants in mouseholes.”); Brown & Williamson, 529

U.S. at 160 (“[W]e are confident that Congress could not have in-

tended to delegate a decision of such economic and political signif-

icance to an agency in so cryptic a fashion.”). It is hard to imagine

how a decision mandating vaccines for much of this nation’s

healthcare workforce—regardless of whether they have contact

with a patient—does not constitute an agency decision of vast eco-

nomic and political significance.

The Fifth Circuit’s recent decision in BST Holdings, LLC v.

OSHA, 17 F.4th 604 (5th Cir. 2021), is instructive. In BST Holdings,

the Fifth Circuit addressed OSHA’s mandatory vaccination

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21-14098 Judge Lagoa, Dissenting 23

requirement, which was issued on the same day as the CMS man-

date. Id. at 609. The Fifth Circuit concluded that a vaccination

mandate clearly implicated the type of significant economic and

political considerations subject to the major questions doctrine. Id.

at 617 (“The [m]andate derives its authority from an old statute

employed in a novel manner, imposes nearly $3 billion in compli-

ance costs, involves broad medical considerations that lie outside

of OSHA’s core competencies, and purports to definitively resolve

one of today’s most hotly debated political issues.” (footnote omit-

ted)).

CMS has never before enforced a vaccination mandate, and

CMS cannot point to clear statutory authorization from Congress

for the mandate. Simply put, nothing in 42 U.S.C. §§ 1302 and

1395hh indicates that Congress intended to assign CMS sweeping

authority to impose a nationwide vaccine mandate—not only on

healthcare workers providing direct patient care, but on all facility

administrators and employees, trainees, students, volunteers, and

third-party contractors who provide any care, treatment, or other

services for the facilities falling under the mandate. Based on the

major questions doctrine, the State of Florida has shown a substan-

tial likelihood of success on the merits of its claim that Congress

has not provided clear statutory authorization for the CMS man-

date.

2. CMS’s Bypass of Notice and Comment Rulemaking

The APA requires a reviewing court to “hold unlawful and

set aside agency action . . . found to be . . . without observance of

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24 Judge Lagoa, Dissenting 21-14098

procedure required by law.” 5 U.S.C. § 706(2)(D). Such procedures

include the notice and comment provisions of 5 U.S.C. § 553, which

require agencies to provide notice of proposed rulemaking and an

opportunity for interested parties to provide comments before

promulgation of any rule. § 553(b)–(c). The State of Florida chal-

lenges CMS’s vaccine mandate based on CMS’s failure to follow

the notice and comment procedures.

The APA’s notice and comment requirements are not mere

procedural niceties, but instead play an important role in our sys-

tem of government. Providing notice and the opportunity for

comment “reintroduce[s] public participation and fairness to af-

fected parties after governmental authority has been delegated to

unrepresentative agencies.” Batterton v. Marshall, 648 F.2d 694,

703 (D.C. Cir. 1980); Dep’t of Homeland Sec. v. Regents of the

Univ. of Cal., 140 S. Ct. 1891, 1929 n.13 (2020) (Thomas, J., concur-

ring in the judgment in part and dissenting in part) (“[T]he notice

and comment process at least attempts to provide a ‘surrogate po-

litical process’ that takes some of the sting out of the inherently

undemocratic and unaccountable rulemaking process.” (quoting

Asimow, Interim-Final Rules: Making Haste Slowly, 51 Admin. L.

Rev. 703, 708 (1999))).

Instead of following the notice and comment procedures,

however, CMS attempts to invoke the “good cause” exception of 5

U.S.C. § 553(b)(B). This exception excuses compliance with the no-

tice and comment rulemaking requirements “when the agency for

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21-14098 Judge Lagoa, Dissenting 25

good cause finds . . . that notice and public procedure thereon are

impracticable, unnecessary, or contrary to the public interest.” Id.

The good cause exception should be read narrowly and ap-

plied reluctantly. United States v. Dean, 604 F.3d 1275, 1279 (11th

Cir. 2010); U.S. Steel Corp. v. EPA, 595 F.2d 207, 214 (5th Cir. 1979);

Mack Trucks, Inc. v. U.S. EPA, 682 F.3d 87, 93 (D.C. Cir. 2012)

(“We have repeatedly made clear that the good cause exception ‘is

to be narrowly construed and only reluctantly countenanced.’”

(quoting Util. Solid Waste Activities Grp. v. EPA, 236 F.3d 749, 754

(D.C. Cir. 2001))). The majority accepts at face value CMS’s justi-

fications for dispensing with notice and comment, which the dis-

trict court summarized as including “the urgency presented by the

ongoing pandemic, the outbreaks associated with the Delta vari-

ant, and the oncoming influenza season,” as well as CMS’s deter-

mination that further delay “would endanger the health and safety

of additional patients and be contrary to the public interest.” 86

Fed. Reg. at 61,584. An examination of the regulation leads me to

conclude, however, that the State of Florida has a strong likelihood

of success on the issue that CMS violated the APA by bypassing the

notice-and-comment requirements. See In re Gateway Radiology

Consultants, P.A., 983 F.3d 1239, 1263 (11th Cir. 2020) (“[W]e are

not a rubber stamp [on agency action]—‘courts retain a role, and

an important one, in ensuring that agencies have engaged in rea-

soned decisionmaking.’” (quoting Judulang v. Holder, 565 U.S. 42,

53 (2011))).

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26 Judge Lagoa, Dissenting 21-14098

While the good cause exception is not exclusively confined

to emergency situations, CMS must “show that there is good cause

to believe that delay would do real harm.” Dean, 604 F.3d at 1281.

In the mandate, CMS explained that “[t]he data showing the vital

importance of vaccination indicate[s] . . . that we cannot delay tak-

ing this action in order to protect the health and safety of millions

of people receiving critical health care services, the workers provid-

ing care, and our fellow citizens living and working in communities

across the nation.” 86 Fed. Reg. at 61583. But an agency cannot

create urgency by its own delay; indeed, such delay demonstrates

a lack of urgency. See Nat. Res. Def. Council v. Nat’l Highway

Traffic Safety Admin., 894 F.3d 95, 114–15 (2d Cir. 2018) (“Good

cause cannot arise as a result of the agency’s own delay, because

‘[o]therwise, an agency unwilling to provide notice or an oppor-

tunity to comment could simply wait . . . , then raise up the “good

cause” banner and promulgate rules without following APA proce-

dures.’” (quoting Council of S. Mountains, Inc. v. Donovan, 653

F.2d 573, 581 (D.C. Cir. 1981))); United States v. Brewer, 766 F.3d

884, 890 (8th Cir. 2014) (“[T]he Attorney General’s stated concern

for public safety further is undermined by his own seven-month

delay in promulgating the Interim Rule.”).

The mandate was announced two months before it was is-

sued by CMS, and the mandate itself does not take effect until one

month after the issuance date. Moreover, vaccines have been avail-

able to healthcare workers for nearly a year before the issuance of

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21-14098 Judge Lagoa, Dissenting 27

the mandate, 5 and the Delta variant has been spreading in the

United States for months, yet CMS took no action. Additionally,

in the explanation of the mandate, CMS itself concedes that it could

have acted earlier—almost a year earlier—but chose not to. See 86

Fed. Reg. at 61,583 (noting CMS could have mandated vaccines ap-

proved for Emergency Use Authorization, but that “CMS initially

chose, among other actions, to encourage rather than mandate vac-

cination”). And what’s more, CMS has previously issued five in-

terim final rules “to help contain the spread of [COVID-19]” since

its onset—none of which included a vaccine mandate. Id. at 61,561.

These facts alone cast significant doubt on the agency’s claim of an

increased urgency justifying abandoning the notice and comment

requirement. Indeed, CMS gave itself more time to issue the man-

date after the President announced it was coming than it gave par-

ticipating facilities to meet its terms. CMS’s own regulation estab-

lishes a lack of urgency on its part, either demonstrating that the

situation is not so dire as it claims, or that it created the urgency by

its own delay. Finally, as the agency concedes, “newly reported

COVID-19 cases, hospitalizations, and deaths have begun to trend

downward at a national level.” Id. at 61,584. This is encouraging

news and, of course, it may change, but there is no way to reconcile

5

The Food and Drug Administration authorized two vaccines under Emer-

gency Use Authorization in December 2020. 86 Fed. Reg. at 61,584. Accord-

ing to CMS, the agency could have imposed a vaccine mandate for vaccines

authorized for Emergency Use Authorization. Id. at 61,583.

USCA11 Case: 21-14098 Date Filed: 12/06/2021 Page: 72 of 94

28 Judge Lagoa, Dissenting 21-14098

this reported decrease in cases, hospitalizations, and deaths with

what CMS suggests is an increased urgency that would satisfy the

“good cause” necessary to dispense with notice and opportunity for

comment.

I turn now to the agency’s other asserted justifications for

good cause. Although CMS notes that “the intensity of the upcom-

ing 2021-2022 influenza season cannot be predicted,” CMS none-

theless cites the possibility of a more severe flu season as justifica-

tion for good cause. Id. The idea is that COVID-19 vaccinations

will help “decreas[e] stress on the U.S. health care system during

ongoing circulation of influenza.” Id. We have yet to hold that

future harm can justify good cause, but surely meeting the excep-

tion would require a showing of more than the mere possibility of

such harm. Cf. Brewer, 766 F.3d at 890 (“Although the risk of fu-

ture harm may, under some circumstances, justify a finding of

good cause, that risk must be more substantial than a mere possi-

bility.”).

CMS also claims that proceeding through notice and com-

ment is contrary to the public interest. 86 Fed. Reg at 61,584 (claim-

ing “a further delay in imposing a vaccine mandate would endan-

ger the health and safety of additional patients and be contrary to

the public interest”). But that misunderstands the statutory crite-

rion. The question is not whether delaying the rule to provide no-

tice and comment would be contrary to the public interest, “but

whether providing notice and comment would be contrary to the

public interest.” Mack Trucks, 682 F.3d at 95. In other words,

USCA11 Case: 21-14098 Date Filed: 12/06/2021 Page: 73 of 94

21-14098 Judge Lagoa, Dissenting 29

notice and comment is contrary to the public interest if its use

would actually harm the public interest. See id. at 94–95. “It is

appropriately invoked when the timing and disclosure require-

ments of the usual procedures would defeat the purpose of the pro-

posal—if, for example, ‘announcement of a proposed rule would

enable the sort of financial manipulation the rule sought to pre-

vent.’” Id. at 95 (quoting Util. Solid Waste Activities Grp., 236 F.3d

at 755).

The burden is on the agency to establish that notice and

comment need not be provided. See Action on Smoking & Health

v. Civil Aeronautics Bd., 713 F.2d 795, 801 n.6 (D.C. Cir. 1983). Not

only does CMS fail to argue that providing notice and comment on

this matter would be contrary to the public interest, but the fact

that the mandate is unprecedented, controversial, and health-re-

lated weighs strongly in favor of providing notice and comment.

“The more expansive the regulatory reach of [agency] rules, of

course, the greater the necessity for public comment.” Am. Fed’n

of Gov’t Emps., AFL-CIO v. Block, 655 F.2d 1153, 1156 (D.C. Cir.

1981). And “[e]specially in the context of health risks, notice and

comment procedures assure the dialogue necessary to the creation

of reasonable rules.” Nat’l Ass’n of Farmworkers Orgs. v. Marshall,

628 F.2d 604, 621 (D.C. Cir. 1980). In a recent order enjoining

CMS’s vaccine mandate, the Eastern District of Missouri aptly

pointed out that requiring hesitant individuals to get vaccinated—

without giving them an opportunity to be heard—undermines the

purpose of the APA’s procedural safeguards and exacerbates

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30 Judge Lagoa, Dissenting 21-14098

vaccine hesitancy. Missouri v. Biden, No. 4:21-cv-01329-MTS, 2021

WL 5564501, at *6–7 (E.D. Mo. Nov. 29, 2021).

Perhaps the overarching issue is that we are two years into

a global pandemic, with multiple, widely available vaccines and

treatments that are only getting better. 86 Fed. Reg. at 61,612. At

this point, and under these circumstances, COVID-19, in and of it-

self, cannot constitute good cause to avoid notice and comment

required by the APA. See BST Holdings, 17 F.4th at 611–12 (“The

Mandate’s stated impetus—a purported ‘emergency’ that the en-

tire globe has now endured for nearly two years, and which [the

agency] itself spent nearly two months responding to—is unavail-

ing . . . .” (footnotes omitted)); see also Does 1-3 v. Mills, No.

21A90, 2021 WL 5027177, at *3 (U.S. Oct. 29, 2021) (Gorsuch, J.,

dissenting) (noting that COVID-19 “cannot qualify as [a compelling

interest] forever” and that “civil liberties face grave risks when gov-

ernments proclaim indefinite states of emergency”). To allow

COVID-19 to constitute good cause now would be to effectively

repeal notice and comment requirements for the duration of the

pandemic.

For the foregoing reasons, the State of Florida has shown a

substantial likelihood of success on the merits as to its claim that

CMS improperly invoked the good cause exception of 5 U.S.C.

§ 533(b)(B) to waive notice and comment procedures.

3. The Vaccination Mandate is Arbitrary and Capricious

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21-14098 Judge Lagoa, Dissenting 31

Agencies are required to engage in reasoned decisionmak-

ing. Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 374

(1998). The APA directs reviewing courts to “hold unlawful and

set aside agency action, findings, and conclusions found to

be . . . arbitrary [and] capricious.” 5 U.S.C. § 706(2)(A). Judicial re-

view under this standard is “exceedingly deferential,” but we must

“ensure that the agency came to a rational conclusion.” Sierra Club

v. Van Antwerp, 526 F.3d 1353, 1360 (11th Cir. 2008) (quoting Fund

for Animals, Inc. v. Rice, 85 F.3d 535, 541 (11th Cir. 1996)). And

while the majority claims the State “essentially seeks to substitute

its views on epidemiology for the Secretary’s judgment about the

best way to protect the public from infection,” Maj. Op. at 38, the

majority fails to analyze whether CMS’s conclusions rationally fol-

low from the evidence the agency purports to rely on. What the

State of Florida actually argues is that the mandate is arbitrary and

capricious because, among other reasons, CMS failed to rationally

connect its evidence to its decision and CMS did not meaningfully

consider alternatives to the vaccination mandate. As discussed be-

low, the State of Florida has shown a substantial likelihood of suc-

cess on the merits as to its claim that the mandate is arbitrary and

capricious and therefore unlawful.

i. Rational Connection Between Evidence and CMS’s De-

cision to Issue the Mandate.

To survive arbitrary and capricious review, “the agency

must examine the relevant data and articulate a satisfactory expla-

nation for its action, including a ‘rational connection between the

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32 Judge Lagoa, Dissenting 21-14098

facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of

U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)

(quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168

(1962)). A court will find a rule arbitrary and capricious if the

agency’s explanation “runs counter to the evidence before the

agency, or is so implausible that it could not be ascribed to a differ-

ence in view or the product of agency expertise.” Id.

Noting its lack of comprehensive data on how vaccination

status impacts the spread of COVID-19 in most covered healthcare

facilities, CMS “extrapolated” the data from its long-term care fa-

cilities. 86 Fed. Reg. at 61,585. The only justification offered by the

agency for extrapolation, instead of gathering data, is that “[a]cute

and [long-term care] facilities engage many, if not all, of the same

health care professionals and support services of other provider and

supplier types.” Id. But residents of long-term care facilities, i.e.,

nursing homes, are among the most vulnerable to COVID-19. As

noted by CMS, they “make up less than 1 percent of the U.S. pop-

ulation” yet “accounted for 35 percent of all COVID-19 deaths”

during the first year of the pandemic, and of the total COVID-19

deaths through September 10, 2021, 30 percent are estimated to

have died during or after staying at such facilities. Id. at 61,566,

61,601. While such evidence may support a vaccine mandate in

long term care facilities, data from these facilities with their con-

cededly unique status cannot reasonably be “extrapolated” to oth-

ers. And CMS presents no similar evidence for imposing the vac-

cine mandate on either the other fourteen kinds of covered

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21-14098 Judge Lagoa, Dissenting 33

facilities or the broad category of covered staff at these facilities.

Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 221 (2016) (“[A]n

agency must give adequate reasons for its decisions.”).

CMS also suffers a lack of data regarding vaccination status

and transmissibility. The mandate was enacted, in part, to mini-

mize “[t]he threats that unvaccinated staff pose to patients” by

transmission. 86 Fed. Reg. at 61,558. The mandate, however, con-

flates data regarding disease severity with disease transmission.

CMS notes that the vaccines are “safe and highly effective at pro-

tecting vaccinated people against symptomatic and severe COVID-

19,” id. at 61,560, but concedes that “the effectiveness of the vac-

cine to prevent disease transmission by those vaccinated [is] not

currently known,” id. at 61,615. Because CMS admits it does not

have data demonstrating the vaccine is effective in preventing

transmission, the mandate cannot be justified on this basis.

“We may not supply a reasoned basis for the agency’s action

that the agency itself has not given.” State Farm, 463 U.S. at 43

(quoting SEC v. Chenery Corp., 332 U.S. 194, 196, (1947)). For

these reasons, I believe that the State of Florida is substantially

likely to succeed on the merits of its argument on appeal that CMS

did not make a “rational connection between the facts found and

the choice made” and that, thus, the mandate is unlawful as it is

arbitrary and capricious. Id.; see also Camp v. Pitts, 411 U.S. 138,

143 (1973) (“If [a] finding is not sustainable on the administrative

record made, then the [agency’s] decision must be vacated and the

matter remanded . . . for further consideration.”).

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34 Judge Lagoa, Dissenting 21-14098

ii. CMS’s Consideration of Alternatives to Vaccination

Mandates.

CMS considered and rejected two alternatives to a vaccine

manadate: (1) regular COVID-19 testing, and (2) natural immunity

resulting from a previous COVID-19 infection. Regarding testing

as an alternative, CMS dismissed this less restrictive alternative in

a single sentence: “We have reviewed scientific evidence on testing

and found that vaccination is a more effective infection control

measure.” 86 Fed. Reg. at 61,614. But the “scientific evidence” re-

lied on by the agency, however, was not provided. Although we

do not require an agency to consider all policy alternatives in reach-

ing a decision, without knowing what data the agency relied on,

we cannot say the agency has provided “a satisfactory explanation

for its action” or that “the decision was based on a consideration of

the relevant factors [or] whether there has been a clear error of

judgment.” State Farm, 463 U.S. at 43, 51 (quoting Bowman

Transp. Inc. v. Ark.-Best Freight Sys., 419 U.S. 281, 285 (1974)).

Turning to natural immunity, CMS justifies rejecting this as

an alternative to the vaccine mandate because “[t]here remain

many uncertainties about as to [sic] the strength and length of this

immunity compared to people who are vaccinated.” 86 Fed. Reg.

at 61,614. But the agency contradicts itself on this point twice. As

to the strength of natural immunity, CMS notes that both people

who receive a vaccine and those that recover from infection “re-

duce the risk to both health care staff and patients substantially,

likely by about 20 million persons a month who are no longer

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21-14098 Judge Lagoa, Dissenting 35

sources of future infections.” Id. at 61,604 (emphasis added). As to

longevity of protection, the agency concedes that the data regard-

ing the vaccines is equally uncertain. Id. at 61,614 (“[T]he duration

of vaccine effectiveness in preventing COVID-19, reducing disease

severity, [and] reducing the risk of death . . . are not currently

known.”). These contradictions are strong indications that the

agency’s decision was arbitrary and capricious. State Farm, 463

U.S. at 43 (stating agency action arbitrary and capricious if the

agency’s explanation “runs counter to the evidence”). Therefore,

the State of Florida is substantially likely to succeed on the merits

of this claim on appeal.

4. The Constitutionality of CMS’s Vaccine Mandate

In addition to the issues arising under the major questions

doctrine and the APA, there are significant and serious questions

regarding the constitutionality of CMS’s vaccine mandate that

make it substantially likely that the State of Florida will prevail on

the merits of its appeal, or at least counsels against adopting CMS’s

broad reading of 42 U.S.C. §§ 1302 and 1395hh and against denying

the State an injunction pending appeal.

“Our precedents require Congress to enact exceed-

ingly clear language if it wishes to significantly alter the balance be-

tween federal and state power.” U.S. Forest Serv. v. Cowpasture

River Pres. Ass’n, 140 S. Ct. 1837, 1849–50 (2020). “Absent a clear

statement of th[ose] purpose[s], we will not presume Congress

to have authorized such a stark intrusion into traditional state au-

thority.” Bond v. United States, 572 U.S. 844, 866 (2014).

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36 Judge Lagoa, Dissenting 21-14098

The Tenth Amendment to the United States Constitution

provides: “The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are reserved to the

States respectively, or to the people.” U.S. Const. amend. X. One

such power is the States’ police power, which “is defined as the au-

thority to provide for the public health, safety, and morals” of the

States’ populaces. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569

(1991); see also Gibbons v. Ogden, 22 U.S. 1, 203 (1824) (noting that

“health laws of every description” constitute “a portion of that im-

mense mass of legislation, which embraces every thing within the

territory of a State, not surrendered to the general government: all

which can be most advantageously exercised by the States them-

selves”). Compulsory vaccination mandates have long been under-

stood to be part of the States’ police power. See Zucht v. King, 260

U.S. 174, 176 (1922) (“Long before this suit was instituted, Jacobson

v. Massachusetts . . . had settled that it is within the police power

of a state to provide for compulsory vaccination.”); Jacobson, 197

U.S. at 35 (upholding a smallpox vaccination requirement adopted

by the city of Cambridge, Massachusetts, based on Massachusetts’s

police power). The mandate, thus, is a federal foray into an area

historically understood as a core power of the States and signifi-

cantly alters the balance of power between them and the federal

government. I find no such clear statement from Congress in any

of the statutory sections relied on by CMS to justify this intrusion

by a federal agency into the police power traditionally reserved to

the States.

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21-14098 Judge Lagoa, Dissenting 37

Moreover, there is a significant question regarding Con-

gress’s power to mandate vaccinations in the first place. Currently,

“no existing federal law expressly imposes vaccination require-

ments on the general population.” Wen W. Shen, Cong. Rsch.

Serv., R46745, State and Federal Authority to Mandate COVID-19

Vaccination 5 (Apr. 2, 2021). And “sometimes ‘the most telling in-

dication of [a] severe constitutional problem . . . is the lack of his-

torical precedent’ for Congress’s action.” Nat’l Fed’n of Indep. Bus.

v. Sebelius, 567 U.S. 519, 549 (2012) (quoting Free Enter. Fund v.

Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 505 (2010)).

The two likeliest sources of congressional power here would

be the Commerce and the Spending Clauses. U.S. Const. art. I, §

8, cl. 3 (Commerce Clause); U.S. Const. art. § 8, cl. 1 (Spending

Clause). It seems unlikely that the Commerce Clause provides the

answer for CMS. See BST Holdings, 17 F.4th at 617 (“A person’s

choice to remain unvaccinated and forgo regular testing is noneco-

nomic inactivity. . . . The Commerce Clause power may be expan-

sive, but it does not grant Congress the power to regulate noneco-

nomic inactivity traditionally within the States’ police power.); see

also United States v. Lopez, 514 U.S. 549, 584 (Thomas, J., concur-

ring) (“[W]e always have rejected readings of the Commerce

Clause and the scope of federal power that would permit Congress

to exercise a police power; our cases are quite clear that there are

real limits to federal power.”); United States v. Morrison, 529 U.S.

598, 618 n.8 (2000) (“With its careful enumeration of federal pow-

ers and explicit statement that all powers not granted to the Federal

USCA11 Case: 21-14098 Date Filed: 12/06/2021 Page: 82 of 94

38 Judge Lagoa, Dissenting 21-14098

Government are reserved, the Constitution cannot realistically be

interpreted as granting the Federal Government an unlimited li-

cense to regulate.”). As Chief Justice Roberts noted in Sebelius:

People, for reasons of their own, often fail to do

things that would be good for them or good for soci-

ety. Those failures—joined with the similar failures

of others—can readily have a substantial effect on in-

terstate commerce. Under the Government’s logic,

that authorizes Congress to use its commerce power

to compel citizens to act as the Government would

have them act.

That is not the country the Framers of our Constitu-

tion envisioned. James Madison explained that the

Commerce Clause was “an addition which few op-

pose and from which no apprehensions are enter-

tained.” The Federalist No. 45, at 293. While Con-

gress’s authority under the Commerce Clause has of

course expanded with the growth of the national

economy, our cases have “always recognized that the

power to regulate commerce, though broad indeed,

has limits.” Maryland v. Wirtz, 392 U.S. 183, 196

(1968).

567 U.S. at 554.

But whether or not Congress, in the abstract, has the power

to mandate vaccinations under the Commerce Clause, CMS lacks

such power on its own. As noted by the Supreme Court, “[w]here

an administrative interpretation of a statute invokes the outer lim-

its of Congress’ power, we expect a clear indication that Congress

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21-14098 Judge Lagoa, Dissenting 39

intended that result.” Solid Waste Agency of N. Cook Cnty. v. U.S.

Army Corps of Eng’rs, 531 U.S. 159, 172 (2001). The need for such

an indication is “heightened where the administrative interpreta-

tion alters the federal-state framework by permitting federal en-

croachment upon a traditional state power.” Id. at 172; see also

United States v. Bass, 404 U.S. 336, 349 (1971) (“[U]nless Congress

conveys its purpose clearly, it will not be deemed to have signifi-

cantly changed the federal-state balance.”) Congress has not given

such an indication here, which is enough in this case for me to con-

clude that the State of Florida is substantially likely to succeed on

the merits of its claims on appeal.

And while Congress may have the ability to condition fed-

eral funds on a vaccination requirement under the Spending

Clause, there, too, Congress must give a clear indication of its in-

tent. Indeed, “if Congress intends to impose a condition on the

grant of federal moneys [under its Spending Clause power], it must

do so unambiguously.” Pennhurst State Sch. & Hosp. v. Halder-

man, 451 U.S. 1, 17 (1981). When looking at the statutes in ques-

tion, I cannot conclude that Congress unambiguously conditioned

Medicare and Medicaid funding on the requirement that all

healthcare workers, employees, trainees, students, volunteers, and

third-party contractors at covered facilities are vaccinated.

To be sure, the Medicare and Medicaid statutes discuss, in

general and generic language, the health and safety of individuals

who use the services of certain healthcare institutions. See, e.g., 42

U.S.C. § 1395d(a); id. § 1396r(d)(4)(B)). And, in looking for some

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40 Judge Lagoa, Dissenting 21-14098

statutory authority for the mandate, CMS and the majority neces-

sarily relies on that language. But, as the State of Florida notes, the

statutes also contain other provisions like 42 U.S.C. § 1395, which

states:

Nothing in this subchapter shall be construed to au-

thorize any Federal officer or employee to exercise

any supervision or control over the practice of medi-

cine or the manner in which medical services are pro-

vided, or over the selection, tenure, or compensation

of any officer or employee of any institution, agency,

or person providing health services; or to exercise any

supervision or control over the administration or op-

eration of any such institution, agency, or person.

Imposing a vaccination requirement with its concomitant

penalties that include withholding funding from facilities that

choose to employ or contract with nonvaccinated individuals cer-

tainly seems to fall within the plain meaning of the words “super-

vision or control” “over the selection [or] tenure … of any officer

or employee,” or “over the administration or operation” of a cov-

ered facility. As with the Commerce Clause, the lack of any clear

indication by Congress conditioning receipt of Medicare and Med-

icaid funding on vaccination is sufficient for me to conclude that

the State of Florida is substantially likely to succeed on the merits

of its claims on appeal.

****

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21-14098 Judge Lagoa, Dissenting 41

Accordingly, for the reasons discussed above, the State of

Florida has shown a substantial likelihood that it will prevail on the

merits of its appeal. This fact weighs heavily in favor of granting

the State’s motion to enjoin the mandate pending judicial review.

I now turn to the remaining factors.

B. Irreparable Injury

To establish entitlement to an injunction pending appeal,

the State must also demonstrate that there is a substantial likeli-

hood it will suffer irreparable harm unless the injunction is granted.

See Touchston, 234 F.3d at 1132; Nken, 556 U.S. at 426. “An injury

is ‘irreparable’ only if it cannot be undone through monetary rem-

edies.” Barrett v. Walker Cnty. Sch. Dist., 872 F.3d 1209, 1229 (11th

Cir. 2017) (quoting Deerfield Med. Ctr. v. City of Deerfield Beach,

661 F.2d 328, 338 (5th Cir. Unit B 1981)).

The State advances several arguments that it has and will

suffer several irreparable harms without an injunction pending ap-

peal to prevent the mandate’s implementation. First, the State con-

tends that it will be unable to enforce the laws passed by the Florida

Legislature prohibiting employers from implementing vaccine

mandates on their workforces. See Fla. Stat. §§ 308.00317, 112.0441

(2021). As the Supreme Court has noted, a state’s “inability to en-

force its duly enacted plans clearly inflicts irreparable harm on the

State.” Abbott v. Perez, 138 S. Ct. 2305, 2324 n.17 (2018); see also

Maryland v. King, 567 U.S. 1301, 1303 (2012) (Roberts, C.J., in

chambers) (explaining that when a state is enjoined “from effectu-

ating statutes enacted by representatives of its people, it suffers a

USCA11 Case: 21-14098 Date Filed: 12/06/2021 Page: 86 of 94

42 Judge Lagoa, Dissenting 21-14098

form of irreparable injury” (quoting New Motor Vehicle Bd. of Cal.

v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977))); Hand v. Scott,

888 F.3d 1206, 1214 (11th Cir. 2018) (“[T]he State Executive Clem-

ency Board would be harmed if it could not apply its own laws to

grant clemency to eligible applicants now . . . .”).

Here, the State of Florida has demonstrated a substantial

likelihood that its sovereign interests are likely to suffer irreparable

harm without an injunction pending appeal. The Florida Legisla-

ture enacted laws prohibiting employers from imposing COVID-

19 vaccine mandates on their workforces, see Fla. Stat. §§

308.00317, 112.0441 (2021), and those state laws apply to all facili-

ties covered by the mandate that are located in Florida. The man-

date “preempts inconsistent State . . . laws as applied to Medicare-

and Medicaid-certified providers and suppliers,” 81 Fed. Reg. at

61,568, i.e., the mandate would preempt the Florida statutes pro-

hibiting the vaccine mandate that CMS seeks to impose.

While the majority concludes that this is not an irreparable

injury because it is “black-letter law that the federal government

does not ‘invade[]’ areas of state sovereignty ‘simply because it ex-

ercises its authority,’” Maj. Op. at 40 (quoting Hodel v. Va. Surface

Mining & Reclamation Ass’n, 452 U.S. 264, 291 (1981)), that argu-

ment relies on the majority’s conclusion that the mandate was law-

fully enacted. But as discussed above, the State of Florida has a

substantial likelihood of success on the merits of its claims that the

mandate is unlawful, including its preemption of state laws like the

one enacted by Florida. Thus, absent an injunction pending appeal,

USCA11 Case: 21-14098 Date Filed: 12/06/2021 Page: 87 of 94

21-14098 Judge Lagoa, Dissenting 43

the State has demonstrated a substantial risk it will suffer irrepara-

ble harm because (1) it is unable to enforce its duly enacted laws,

and (2) its state agencies will be forced to choose between comply-

ing with Florida law or complying with a federal rule that is likely

unlawful. See BST Holdings, 17 F.4th at 618 (“The States, too, have

an interest in seeing their constitutionally reserved police power

over public health policy defended from federal overreach.”).

Second, the State contends that it will suffer irreparable

harm because the mandate will deprive the State and its agencies

of vital medical staff, exacerbating an already critical staffing short-

age for healthcare workers. In turn, the State asserts that exacer-

bating the healthcare staffing shortages in its state agencies will re-

sult in serious disruptions in patient services in the form of cancel-

lations and delays as well as an overall reduction in the quality of

patient care provided by the agencies.

“[A] State has a quasi-sovereign interest in the health and

well-being—both physical and economic—of its residents in gen-

eral” as well as an interest in “ensuring that the State and its resi-

dents are not excluded from the benefits that are to flow from par-

ticipation in the federal system.” Alfred L. Snapp & Son, Inc. v.

Puerto Rico, ex rel., Barez, 458 U.S. 592, 607–08 (1982).

Here, the State has provided affidavits, outlined above, from

several officials representing its state agencies. These officials at-

tested that the agencies they represent are already suffering from

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44 Judge Lagoa, Dissenting 21-14098

healthcare staffing shortages, especially in Florida’s rural areas. 6

These officials further attested that implementation of the mandate

would result in further staffing shortages because employees

would end their employment instead of complying with the vac-

cination requirement. Most of the affiants provided estimates as to

the number of employees the agencies expected to lose.

The district court found that these affidavits were specula-

tive and conclusory, and the majority concludes that Florida failed

to demonstrate that the district court’s holding was erroneous.

Contrary to the conclusion of the district court and the majority,

see Maj. Op. at 40–42, the affidavits provided by the State are not

merely “speculative” or phrased in “conclusory” terms. Rather, in

these affidavits, which were submitted by officials from various

state agencies based on their professional knowledge and experi-

ence, several of the agency officials concretely explain: (1) the ex-

isting healthcare staffing shortages in their respective agencies; (2)

6

Indeed, the healthcare staffing shortages in Florida over the last several

months have been widely publicized. See Florida Health-care Groups Warn

of Growing Workforce Crisis, Orlando Sentinel (Nov. 1, 2021, 1:47 PM),

https://www.orlandosentinel.com/politics/os-ne-health-care-staffing-crisis-

florida-20211101-iluz3jbbt5ffbp7s3juqee2soe-story.html; Kirby Wilson, Flor-

ida Will Be Short Nearly 60,000 Nurses by 2035, Report Says, Tampa Bay

Times (Sept. 30, 2021), https://www.tampabay.com/news/florida-poli-

tics/2021/09/30/florida-will-be-short-nearly-60000-nurses-by-2035-report-

says/

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21-14098 Judge Lagoa, Dissenting 45

how the mandate will exacerbate the staffing shortages those agen-

cies face, as a number of employees have indicated they will leave

employment rather than comply with the vaccination requirement

in the mandate; and (3) how that exacerbated staffing shortage will

result in disruptions in, and reductions to, the quality of patient

care. For example, several affidavits provided estimates as to the

number of employees the agencies expect to lose. And several of

the agency officials attested that it would take at least ninety days

to hire replacement staff, given the current labor market, and that

the interim vacancies would cause patient care cancellation and de-

lays and would reduce the overall quality of care the agencies’ pa-

tients received.

“At the preliminary injunction stage, a district court may

rely on affidavits and hearsay materials which would not be admis-

sible evidence for a permanent injunction, if the evidence is ‘appro-

priate given the character and objectives of the injunctive proceed-

ing.’” Levi Strauss & Co. v. Sunrise Int’l Trading Inc., 51 F.3d 982,

985 (11th Cir. 1995) (quoting Asseo v. Pan Am. Grain Co., 805 F.2d

23, 26 (1st Cir. 1986)). Simply put, the State has provided evidence

in the form of affidavits showing that its state agencies will be ad-

versely impacted by exacerbated staffing shortages if the mandate

is implemented and how those shortages will likely affect the

amount, timing, and quality of patient care provided by the agen-

cies. Cf. BST Holdings, 17 F.4th at 618 (“[T]he companies seeking

a stay in this case will also be irreparably harmed in the absence of

a stay, whether by the business and financial effects of a lost or

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46 Judge Lagoa, Dissenting 21-14098

suspended employee.”). Based on this record, the State has shown

a substantial risk that it will suffer irreparable harm in the form of

an exacerbated staffing shortage leading to delays in and a reduc-

tion in the quality of patient care that its agencies provide.

Finally, the State asserts that it will suffer irreparable harm

in the form of heavy compliance costs if its agencies—in particular,

AHCA—were to implement the mandate and that these costs

would likely be nonrecoverable even if the mandate was ultimately

held to be invalid. Indeed, as the Fifth Circuit recently noted in

BST Holdings, “complying with a regulation later held invalid al-

most always produces the irreparable harm of nonrecoverable

compliance costs.” Id. at 618 (emphasis in original) (quoting Texas

v. EPA, 829 F.3d 405, 433 (5th Cir. 2016)); see also Thunder Basin

Coal Co. v. Reich, 510 U.S. 200, 220–21 (1994) (Scalia, J., concurring

in part and in the judgment). And the Fifth Circuit thus concluded

that “compliance and monitoring costs associated with” a vaccine

mandate constituted irreparable harm to the companies seeking a

stay of the mandate. See BST Holdings, 17 F.4th at 618. Similarly

here, the State has demonstrated a substantial risk of irreparable

harm in the form of compliance costs associated with the mandate

incurred by its agencies.

And the State also contends that the mandate threatens Flor-

ida with the loss of critical federal funding from the Medicare and

Medicaid programs to its state-run facilities. While, as the majority

summarily notes, economic or monetary injuries are generally rep-

arable at law and weigh against a claim of irreparable harm, see Ne.

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21-14098 Judge Lagoa, Dissenting 47

Fla. Chapter of Ass’n of Gen. Contractors of Am. v. City of Jack-

sonville, 896 F.2d 1283, 1285 (11th Cir. 1990), several of the agency

officials attested in their affidavits that if their agencies did not com-

ply with the mandate, the resulting loss of federal funding would

lead to a reduction in patient care, i.e., services the agencies would

be unable to provide and receive revenue from, or a reduction in

staff the agencies were able to employ. As the State explains, these

ripple effects from the lack of Medicare and Medicaid funding to its

agencies would directly impact that care its agencies’ facilities pro-

vide on a daily basis and that impact would not be recoverable,

even if the mandate was held invalid and the State was able to claw

back the withheld funding. Here again, the State of Florida has

shown a substantial risk that it will suffer irreparable harm in the

form of reduction in patient care at its agencies’ facilities due to a

loss of federal funding.

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