Court filing

Complaint — Florida v. HHS

Filed November 17, 2021 in Florida v. HHS; one of 9 filings from this case.

Record facts

Court	UNITED STATES DISTRICT COURT
Filed	2021-11-17

UNITED STATES DISTRICT COURT · No. 3:21-cv-02722-MCR-HTC · Doc. 1 · 2021-11-17 · Docket on CourtListener

Full text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION

STATE OF FLORIDA,

Plaintiff,

Case No. 3:21-cv-2722

DEPARTMENT OF HEALTH AND
HUMAN SERVICES; XAVIER
BECERRA, in his official capacity as
Secretary of the Department of Health
and Human Services; The UNITED
STATES OF AMERICA; CHIQUITA
BROOKS-LASURE, in her official
capacity as Administrator of the Centers
for Medicare and Medicaid; THE
CENTERS FOR MEDICARE AND
MEDICAID,

Defendants.
_________________________________/

COMPLAINT FOR TEMPORARY RESTRAINING
ORDER, PRELIMINARY AND PERMANENT
INJUNCTIVE RELIEF, AND DECLARATORY RELIEF

INTRODUCTION
1.
Many American workers were able to stay home at the peak of the
pandemic. But our healthcare workers were on the front lines, risking their lives to
keep us safe. Working conditions were tough, exacerbating an already worsening
staffing shortage.
Case 3:21-cv-02722-MCR-HTC Document 1 Filed 11/17/21 Page 1 of 36

2.
While these same workers continue to bravely discharge their duties,
President Biden is now telling over 10 million of them that they must get vaccinated
or lose their jobs. In his words, any resistance to this mandate—even by those with
natural immunity—is claiming the “freedom to kill [others] with [their] COVID.”1
3.
This action is unprecedented. As the federal government concedes, it
has “not previously required” mandatory vaccination for the healthcare industry. See
Medicare and Medicaid Programs: Omnibus COVID-19 Health Care Staff
Vaccination, 86 Fed. Reg. 61,555 (Nov. 5, 2021) (the mandate). In fact, the federal
government has “not previously required” mandatory vaccination for any private
industry. Just months ago, the Biden Administration made clear that mandating
vaccines is “not the role of the federal government.”2
4.
It is also reckless. The healthcare industry is in the throes of what “some
are calling the worst U.S. health-care labor crisis in memory.”3 Indeed, pandemic-
related burnout has created critical staffing shortages nationwide. Compounding the
problem, many healthcare employees do not want to take the COVID-19 vaccine,
particularly in small, rural areas already short on personnel. Combined, these factors

1 CNN Presidential Town Hall With President Joe Biden, CNN (Oct. 21, 2021),
https://transcripts.cnn.com/show/se/date/2021-10-21/segment/01.
2 Press Briefing by Press Secretary Jen Psaki, July 23, 2021, The White House (July 23, 2021),
https://www.whitehouse.gov/briefing-room/press-briefings/2021/07/23/press-briefing-by-press-
secretary-jen-psaki-july-23-2021/.
3 Carey Goldberg & Jonathan Levin, Vaccine Mandates Hit Amid Historic Health-Care Staff
Shortage, Bloomberg (Oct. 2, 2021), https://www.bloomberg.com/news/articles/2021-10-
02/vaccine-mandates-hit-amid-historic-health-care-staff-shortage.
Case 3:21-cv-02722-MCR-HTC Document 1 Filed 11/17/21 Page 2 of 36

have created a powder keg, and healthcare officials fear a vaccine mandate could
spark an exodus of workers from the industry. Given these severe conditions, even
a minor loss of staff could have a “disastrous impact” on patient care.4
5.
Against this backdrop, the federal government previously determined
that less-intrusive safety regulations were appropriate to combat the spread of
COVID-19 in healthcare facilities. E.g., Medicare and Medicaid Programs; COVID-
19 Vaccine Requirements for Long-Term Care (LTC) Facilities and Intermediate
Care Facilities for Individuals With Intellectual Disabilities (ICFs-IID) Residents,
Clients, and Staff, 86 Fed. Reg. 26,306 (May 13, 2021); Occupational Exposure to
COVID-19; Emergency Temporary Standard, 86 Fed. Reg. 32,376 (June 21, 2021).
6.
But as healthcare workers grappled with the deeply personal decision
of whether to take a vaccine, President Biden’s “patience . . .w[ore] thin,” and he
grew “ang[ry] at those who haven’t gotten vaccinated.”5 Unwilling to wait any
longer, on September 9, 2021, President Biden announced several administrative
actions aimed at mandating vaccines, which together affect roughly 100 million
Americans.6

4 Health care group worried vaccine mandate will impact Missouri nursing homes, Fox 2 Now
(Nov. 5, 2021), https://fox2now.com/news/health-care-group-worried-vaccine-mandate-will-
impact-missouri-nursing-homes/.
5 Remarks by President Biden on Fighting the COVID-19 Pandemic, The White House (Sept. 9,
2021),
https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/09/09/remarks-by-
president-biden-on-fighting-the-covid-19-pandemic-3/.
6 Id.
Case 3:21-cv-02722-MCR-HTC Document 1 Filed 11/17/21 Page 3 of 36

7.
As relevant here, he announced that the Department of Health &
Human Services (HHS) would issue a rule requiring vaccination for all employees
working in Medicare- or Medicaid-participating facilities.7 On November 5, 2021,
the Centers for Medicare and Medicaid (CMS), an HHS component, did so. See 86
Fed. Reg. at 61,555.
8.
In its effort to fast-track the President’s agenda, however, CMS
exceeded its statutory authority and flouted key procedural safeguards that Congress
enacted to protect the public from hasty and reactive decision-making.
9.
To start, CMS lacks the power to issue an industry-wide vaccination
mandate. The statutes it relies on do not provide it such sweeping authority. In fact,
CMS is forbidden from exerting this level of control over the healthcare industry.
See 42 U.S.C. § 1395.
10.
Lack of authority aside, CMS also failed to fulfill its statutory duty “to
consult with appropriate State agencies” in developing the mandate, see 42 U.S.C.
§ 1395z—a grievous dereliction of duty given that CMS has never before mandated
vaccination and thus lacks an understanding of how its mandate will affect the States.
11.
Making matters worse, CMS sidestepped the notice and comment
process set out in the Administrative Procedure Act (APA). See 5 U.S.C. § 553. And

7 Biden-Harris Administration to Expand Vaccination Requirements for Health Care Settings,
CMS (Sept. 9, 2021), https://www.cms.gov/newsroom/press-releases/biden-harris-administration-
expand-vaccination-requirements-health-care-settings.
Case 3:21-cv-02722-MCR-HTC Document 1 Filed 11/17/21 Page 4 of 36

though it claims “good cause” to do so, see id. § 553(b)(B), its primary
justifications—the two-year-old COVID-19 pandemic and the Delta variant—do not
satisfy the exceedingly high and exceptional “good cause” standard.
12.
On top of all this, CMS acted arbitrarily and capriciously in issuing the
mandate. See 5 U.S.C. § 706(2)(A). It fails to adequately consider the viability of
less-intrusive measures like testing, the harmful effects the mandate will have on the
healthcare staffing crisis and vaccine-education efforts, the effects of natural
immunity and new COVID-19 treatments, the reliance interests of healthcare
employers and employees, and the incongruence between its vaccine requirement
and its stated goal of protecting patients and staff. It also fails to connect the statistics
driving its mandate with most of the facilities covered by it or to sufficiently justify
its extreme departure from the federal government’s prior practices.
13.
Finally, the mandate violates the Spending Clause—which requires that
conditions on federal funds be unambiguous—by changing the terms of an
agreement Florida has with the federal government midstream and without notice.
14.
Because CMS’s rushed and unlawful mandate threatens to defund the
State’s medical facilities, bleed them of vital staff, hamper the quality of their
medical care, and harm both Florida’s economy and the health of its citizens, Florida
seeks immediate relief from this Court.
Case 3:21-cv-02722-MCR-HTC Document 1 Filed 11/17/21 Page 5 of 36

PARTIES
15.
Plaintiff State of Florida is a sovereign State and has the authority and
responsibility to protect its public fisc and the health, safety, and welfare of its
citizens. It is also the operator of medical-service providers that receive Medicare or
Medicaid funding. And its health agency—the Agency for Health Care
Administration (AHCA)—administers Florida’s Medicaid plan and assists CMS in
regulating facilities that participate in Medicare.
16.
Defendants are the United States, appointed officials of the United
States government, and United States governmental agencies responsible for the
issuance and implementation of the challenged administrative actions.
17.
Florida sues Defendant the United States of America under 5 U.S.C.
§§ 702–703 and 28 U.S.C. § 1346.
18.
Defendant CMS issued the mandate and is a component of HHS.
19.
Defendant Chiquita Brooks-LaSure is the Administrator of CMS. She
is sued in her official capacity.
20.
Defendant HHS oversees CMS.
21.
Defendant Xavier Becerra is the Secretary of HHS. He is sued in his
official capacity.
Case 3:21-cv-02722-MCR-HTC Document 1 Filed 11/17/21 Page 6 of 36

JURISDICTION AND VENUE
22.
The
Court
has
subject
matter
jurisdiction
pursuant
to
28 U.S.C. §§ 1331, 1346, 1361 and 5 U.S.C. §§ 702–03.
23.
The Court is authorized to award the requested declaratory and
injunctive relief under 5 U.S.C. § 706, 28 U.S.C. §§ 1361, 2201–02, the Constitution,
and the Court’s equitable powers.
24.
Venue lies in this district pursuant to 28 U.S.C. § 1391(e)(1) because
the State of Florida is a resident of every judicial district in its sovereign territory,
including this judicial district (and division). See California v. Azar, 911 F.3d 558,
570 (9th Cir. 2018).8 And because medical facilities receive Medicare and Medicaid
funding in this district and division, a substantial part of the events or omissions
giving rise to Florida’s claims occurred here.
FACTUAL BACKGROUND
The Medicare and Medicaid Schemes
25.
Medicare and Medicaid are federal programs that pay medical expenses
for certain individuals.

8 Accord Alabama v. U.S. Army Corps of Eng’rs, 382 F. Supp. 2d 1301, 1329 (N.D. Ala. 2005);
see also Atlanta & F.R. Co. v. W. Ry. Co. of Ala., 50 F. 790, 791 (5th Cir. 1892) (explaining that
“the state government . . . resides at every point within the boundaries of the state”).
Case 3:21-cv-02722-MCR-HTC Document 1 Filed 11/17/21 Page 7 of 36

26.
Medicare is an insurance program.9 It provides health-insurance
coverage to individuals who are at least 65-years-old and are entitled to monthly
Social Security benefits, and to disabled individuals who meet certain requirements.
42 U.S.C. § 1395 et seq. CMS administers the program on behalf of the Secretary of
HHS. See Pharm. Rsch. & Mfrs. of Am. v. Walsh, 538 U.S. 644, 651 n.3 (2003).
27.
Medicaid is an assistance program.10 It pays medical bills for low-
income individuals. 42 U.S.C. § 1396 et seq. It is “the primary federal program for
providing medical care to indigents at public expense.” Mem’l Hosp. v. Maricopa
Cnty., 415 U.S. 250, 262 n.19 (1974). The program is administered jointly by the
States and the federal government through a “contract[ual]” relationship. NFIB v.
Sebelius, 567 U.S. 519, 577 (2012). Federal funds are distributed to qualifying
States, which administer their Medicaid programs pursuant to federal requirements.
28.
To be eligible to receive payments from either Medicare or Medicaid,
participating medical-care providers must enter into agreements with the federal
government or the administering State in which they agree to comply with federally
imposed conditions of participation, coverage, or certification. E.g., 42 U.S.C.

9
What
is
the
difference
between
Medicare
and
Medicaid,
HHS,
https://www.hhs.gov/answers/medicare-and-medicaid/what-is-the-difference-between-medicare-
medicaid/index.html.
10 Id.
Case 3:21-cv-02722-MCR-HTC Document 1 Filed 11/17/21 Page 8 of 36

§§ 1395cc(b)(2), 1396a(a)(33)(B). Some requirements are created by statute. E.g.,
42 U.S.C. § 1395x. Others are created by CMS regulations. E.g., 42 C.F.R. part 482.
29.
To ensure compliance with these conditions, CMS contracts with state
health agencies to “survey” participating medical-care providers. 42 U.S.C.
§§ 1395aa(a), 1396a(a)(33)(B). Florida is no exception—AHCA surveys
participating providers on behalf of CMS.
Current State of the Healthcare Industry
30.
The COVID-19 pandemic has placed tremendous strain on the nation’s
healthcare industry, creating perhaps the “worst U.S. health-care labor crisis in
memory.”11 As of October 1, 2021, about 16% of U.S. hospitals had “critical staffing
shortages.”12 In some places, as many as 25% of beds are going unfilled because the
facilities lack adequate staffing.13 And rural areas are bearing a disproportionate
share of the burden, making up 60% of staffing shortages nationwide14 despite
serving less than 20% of the population.15

11 Carey Goldberg & Jonathan Levin, Vaccine Mandates Hit Amid Historic Health-Care Staff
Shortage, Bloomberg (Oct. 2, 2021), https://www.bloomberg.com/news/articles/2021-10-
02/vaccine-mandates-hit-amid-historic-health-care-staff-shortage.
12 Id.
13 Id.
14 Aallyah Wright, Rural Hospitals Can’t Find the Nurses They Need to Fight COVID, Stateline
(Sept.
1,
2021),
https://www.pewtrusts.org/en/research-and-
analysis/blogs/stateline/2021/09/01/rural-hospitals-cant-find-the-nurses-they-need-to-fight-covid.
15 Rural Report: Challenges Facing Rural Communities and the Roadmap to Ensure Local Access
to
High-quality,
Affordable
Care,
American
Hospital
Association
at
2,
https://www.aha.org/system/files/2019-02/rural-report-2019.pdf.
Case 3:21-cv-02722-MCR-HTC Document 1 Filed 11/17/21 Page 9 of 36

31.
A chief driver of the crisis is employee burnout, which has reached
“epidemic proportions.”16 In one study, “[a]n overwhelming 55% of frontline-health
care workers reported burnout (defined as mental and physical exhaustion from
chronic workplace stress).”17 Almost 30% have considered “leaving the medical
field” altogether,18 and over 500,000 have done so already.19
32.
Another driver is money. Drawn by lucrative salary raises—some
approaching 800%—many healthcare workers have left in-house staffs for contract
staffing agencies.20 Depleted by these losses, healthcare providers have been forced
to turn to these very agencies to fill their staffing gaps, paying “well above normal”
for their services.21 This staffing arms race has hit healthcare providers across the
board,22 but it has been especially difficult for small rural hospitals that cannot afford

16
Dharam
Kaushik,
Medical
burnout:
Breaking
bad,
AAMC
(June
4,
2021),
https://www.aamc.org/news-insights/medical-burnout-breaking-bad.
17 Id.
18 Id.
19 Mallory Hackett, Healthcare lost 17,500 jobs in September amid ongoing labor shortage,
Healthcare Finance (Oct. 11, 2021), https://www.healthcarefinancenews.com/news/healthcare-
lost-17500-jobs-september-amid-ongoing-labor-shortage.
20 Leticia Miranda, Rural hospitals losing hundreds of staff to high-paid traveling nurse jobs, NBC
News (Sept. 15, 2021), https://www.nbcnews.com/business/business-news/rural-hospitals-losing-
hundreds-staff-high-paid-traveling-nurse-jobs-n1279199.
21 Bertha Coombs, Regulations slow urgent hiring of doctors and nurses amid coronavirus
outbreak,
staffing
firms
say,
CNBC
(Mar.
28,
2020),
https://www.cnbc.com/2020/03/28/coronavirus-regulations-slow-hiring-of-doctors-and-nurses-
staffing-firms-say.html.
22 Hospitals and Health Systems Face Unprecedented Financial Pressures Due to COVID-19,
American Hospital Association (May 2020), https://www.aha.org/guidesreports/2020-05-05-
hospitals-and-health-systems-face-unprecedented-financial-pressures-due.
Case 3:21-cv-02722-MCR-HTC Document 1 Filed 11/17/21 Page 10 of 36

to pay inflated contract staffing rates or increase salaries to keep their employees in-
house.23
33.
Florida has not been immune to this staffing emergency. For example,
92% of long term care facilities in Florida face a staffing crunch; for 75% of them,
it is “the number one concern.”24 And Florida’s vacancy rate for nurses is 11%—
more than a full percentage point above the national average.25
34.
Compounding the staffing crisis, many healthcare workers, both
nationally and in Florida, do not want to receive the COVID-19 vaccine. A
nationwide survey found that 25% of nurses had personal concerns about taking the
vaccine.26 In Florida, data published just a few months ago found that between 40–
50% of hospital employees had not been vaccinated.27 And in rural areas—which

23 Leticia Miranda, Rural hospitals losing hundreds of staff to high-paid traveling nurse jobs (Sept.
15, 2021), https://www.nbcnews.com/business/business-news/rural-hospitals-losing-hundreds-
staff-high-paid-traveling-nurse-jobs-n1279199.
24 Jake Stofan, Health care industry asking Florida lawmakers to address chronic staffing
shortages, WFLA (Nov. 1, 2021), https://www.wfla.com/news/florida/health-care-industry-
asking-florida-lawmakers-to-address-chronic-staffing-shortages/.
25 Id.
26 Christopher O’Donnell, Tampa Bay hospitals push COVID vaccine – but won’t mandate it for
their
workers,
Tampa
Bay
Times
(Sept.
3,
2021),
https://www.tampabay.com/news/health/2021/09/03/tampa-bay-hospitals-push-covid-shot-but-
wont-mandate-it-for-their-workers/.
27 Liz Crawford, AHCA: 42% of Florida hospital workers weren’t vaccinated, as of June 4, WTSP
(July 22, 2021), https://www.wtsp.com/article/news/health/coronavirus/vaccine/hospital-workers-
not-vaccinated/67-9e842ff1-e5b0-4f1f-8f9f-ccfec865ccbf;
David
Bauerlein,
UF
Health
Jacksonville finding widespread vaccine hesitancy among its own staff, Jacksonville.com (July 23,
2021),
https://www.jacksonville.com/story/news/2021/07/23/uf-health-ceo-says-overcoming-
vaccine-hesitancy-challenge-among-staff/8075987002/.
Case 3:21-cv-02722-MCR-HTC Document 1 Filed 11/17/21 Page 11 of 36

have the most “dire” staffing shortages of all28—the statistics are even bleaker. One
study found that in 30% of rural hospitals nationwide, less than half of the staff have
received a COVID-19 vaccine.29
35.
This confluence of factors has left many healthcare administrators
worried that a vaccine mandate could push the industry over the edge. They fear
“many employees [will] quit rather than comply”—a “huge concern” given current
staffing deficiencies.30 The concern is not merely speculative: In some places, triple-
digit numbers of workers have resigned or been fired for refusing to take a vaccine.31
One Florida-based administrator estimates that a mandate would cause him to “lose
10 to 15 percent of [his] staff.”32 But this estimate is on the low end: A recent survey
found that 37% of unvaccinated workers would leave their jobs if their employers

28 Aallyah Wright, Rural Hospitals Can’t Find the Nurses They Need to Fight COVID, Stateline
(Sept.
1,
2021),
https://www.pewtrusts.org/en/research-and-
analysis/blogs/stateline/2021/09/01/rural-hospitals-cant-find-the-nurses-they-need-to-fight-covid.
29 Tamara Keith, Why Lagging COVID Vaccine Rate At Rural Hospitals ‘Needs To Be Fixed Now’,
NPR (May 4, 2021), https://www.npr.org/2021/05/04/993270974/why-lagging-covid-vaccine-
rate-at-rural-hospitals-needs-to-be-fixed-now.
30 Christopher O’Donnell, Tampa Bay hospitals push COVID vaccine – but won’t mandate it for
their
workers,
Tampa
Bay
Times
(Sept.
3,
2021),
https://www.tampabay.com/news/health/2021/09/03/tampa-bay-hospitals-push-covid-shot-but-
wont-mandate-it-for-their-workers/.
31 Dan Diamond, 153 people resigned or were fired from a Texas hospital system after refusing to
get
vaccinated,
The
Washington
Post
(June
22,
2021),
https://www.washingtonpost.com/health/2021/06/22/houston-methodist-loses-153-employees-
vaccine-mandate/.
32 Hannah Mitchell, ‘Like hand-to-hand combat’: Florida health system battles vaccine hesitancy
1
employee
at
a
time,
Becker’s
Hospital
Review
(Nov.
4,
2021),
https://www.beckershospitalreview.com/hospital-management-administration/like-hand-to-hand-
combat-florida-health-system-battles-vaccine-hesitancy-1-employee-at-a-time.html.
Case 3:21-cv-02722-MCR-HTC Document 1 Filed 11/17/21 Page 12 of 36

mandated vaccination or weekly testing.33 And if mandatory vaccination is the only
option, 72% say they will quit.34
36.
Employee flight does not just hamper the healthcare industry’s capacity
to fight COVID-19, but to address other healthcare risks as well. As the CEO of one
Florida health system put it: “If today I said, ‘everybody’s required to take the
vaccine or you’re terminated,’ then I have a problem being able to take care of people
who show up to our ER with strokes, or chest pains, or medical admissions or
surgical admissions.”35 And as CMS concedes, 86 Fed. Reg. at 61,612, given the
already-severe staffing shortage in the healthcare industry, “[e]ven a small fraction
of” so-called “recalcitrant unvaccinated employees” could “disrupt facility
operations,” id., and have a “disastrous impact” on patient care.36
37.
To be sure, encouraging vaccination of healthcare workers is good
policy. Indeed, such measures have proven effective in Florida. To cite one example,

33 Liz Hamel et al., KFF COVID-19 Vaccine Monitor: October 2021, KFF (Oct. 28, 2021),
https://www.kff.org/coronavirus-covid-19/poll-finding/kff-covid-19-vaccine-monitor-october-
2021/.
34 Id.
35 Jacqueline LaPointe, Hospitals Staffing Shortages a Concerns with Mandatory Vaccinations,
Revcycle Intelligence (July 26, 2021), https://revcycleintelligence.com/news/hospital-staffing-
shortages-a-concern-with-mandatory-vaccinations.
36 Health care group worried vaccine mandate will impact Missouri nursing homes, Fox 2 Now
(Nov. 5, 2021), https://fox2now.com/news/health-care-group-worried-vaccine-mandate-will-
impact-missouri-nursing-homes/.
Case 3:21-cv-02722-MCR-HTC Document 1 Filed 11/17/21 Page 13 of 36

a healthcare system raised staff vaccination rates by 10% through vaccination-
education strategies.37
38.
Mandates, however, are another matter altogether. In addition to the
issues already discussed, they may even “chill” individuals who might otherwise
take the vaccine voluntarily.38
The Federal Government’s Response to the COVID-19 Pandemic
39.
In January 2020, HHS declared the COVID-19 pandemic a public
health emergency. Though public health emergency designations naturally expire
after 90 days, 42 U.S.C. § 247d, HHS has renewed the designation each time it was
set to expire.39
40.
Almost a year ago, in December 2020, COVID-19 vaccines began to
become available to the general public. On December 11, 2020, the Food & Drug
Administration (FDA) authorized the emergency use of the two-dose Pfizer-Biotech
vaccine. A week later, FDA did the same for the two-dose Moderna vaccine. On

37 Hannah Mitchell, ‘Like hand-to-hand combat’: Florida health system battles vaccine hesitancy
1
employee
at
a
time,
Becker’s
Hospital
Review
(Nov.
4,
2021),
https://www.beckershospitalreview.com/hospital-management-administration/like-hand-to-hand-
combat-florida-health-system-battles-vaccine-hesitancy-1-employee-at-a-time.html.
38 Bailey LeFever, Majority of Florida’s long-term care staffers refused coronavirus vaccine,
Tampa Bay Times (Apr. 1, 2021), https://www.tampabay.com/news/health/2021/04/01/majority-
of-floridas-long-term-care-staffers-refused-coronavirus-vaccine/.
39 COVID-19 Public Health and Medical Emergency Declarations and Waivers, PHE (Apr. 16,
2021),
https://www.phe.gov/emergency/events/COVID19/Pages/2019-Public-Health-and-
Medical-Emergency-Declarations-and-Waivers.aspx.
Case 3:21-cv-02722-MCR-HTC Document 1 Filed 11/17/21 Page 14 of 36

February 27, 2021, FDA did the same for the one-dose Johnson & Johnson vaccine.40
And almost immediately, healthcare workers became eligible to take the vaccine.41
41.
Despite these authorizations and the longstanding public health
emergency declaration, the federal government never sought to mandate
vaccinations to fight COVID-19 in any sector, let alone the healthcare sector. Rather,
it opted for less-intrusive measures. In May 2021, for instance, CMS issued an
interim final rule (IFR) that required long term care facilities and intermediate care
facilities for individuals with intellectual disabilities to educate staff and residents
about the vaccine and make the vaccine available to them. 86 Fed. Reg. at 26,306
(May IFR). This, in CMS’s view, was “necessary to help protect the health and
safety” of residents. Id. Mandatory vaccination, however, was not required.
42.
Similarly, in June 2021, the Occupational Health and Safety
Administration (OSHA) issued a COVID-19 Healthcare Emergency Temporary
Standard (ETS), which aimed to protect healthcare workers from occupational
exposure to COVID-19. 86 Fed. Reg. at 32,376 (June ETS). Under the June ETS—
which remains in effect—covered healthcare employers must implement measures
like transmission-based precautions, personal protective equipment, and physical

40 Carl Zimmer et al.,
Coronavirus Vaccine Tracker,
The
New York Times,
https://www.nytimes.com/interactive/2020/science/coronavirus-vaccine-tracker.html.
41 Maggie Fox, Some Americans should start getting the first Covid-19 vaccine today. It will take
months
before
everyday
people
get
the
shots,
CNN
(Dec.
14,
2020),
https://www.cnn.com/2020/12/14/health/covid-vaccine-timeline/index.html
(reporting
that
healthcare workers would be eligible for vaccination in December 2020).
Case 3:21-cv-02722-MCR-HTC Document 1 Filed 11/17/21 Page 15 of 36

distancing. Id. at 32,426–57. The June ETS also requires employers to provide paid
leave for employees to receive COVID-19 vaccines. Id. at 32,599. But like CMS’s
May IFR, the June ETS did not mandate vaccination.
The Biden Administration’s Actions
43.
Despite pushing the envelope in numerous ways during the COVID-19
pandemic, e.g., Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2486 (2021); Florida
v. Becerra, 8:21-cv-839, 2021 WL 2514138 (M.D. Fla. June 18, 2021), the Biden
Administration at first drew a hard line on vaccine mandates: In its view, mandating
vaccines was “not the role of the federal government.”42
44.
Not long after, though, the President’s “patience” with the unvaccinated
“w[ore] thin,” prompting him to announce three new administrative actions aimed
at compelling much, if not most, of the adult population in the United States to
receive a COVID-19 vaccine.43
45.
First, the President announced that he would issue an executive order
requiring all executive branch employees and federal contractors to be vaccinated.44

42 Press Briefing by Press Secretary Jen Psaki, July 23, 2021, The White House (July 23, 2021),
https://www.whitehouse.gov/briefing-room/press-briefings/2021/07/23/press-briefing-by-press-
secretary-jen-psaki-july-23-2021/.
43 Remarks by President Biden on Fighting the COVID-19 Pandemic, The White House (Sept. 9,
2021),
https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/09/09/remarks-by-
president-biden-on-fighting-the-covid-19-pandemic-3/.
44 Id.
Case 3:21-cv-02722-MCR-HTC Document 1 Filed 11/17/21 Page 16 of 36

46.
Second, the President announced that the Department of Labor would
develop an emergency rule mandating that private employers with 100 or more
employees require their employees to become fully vaccinated or submit to weekly
testing.45
47.
Finally, as relevant here, the President announced that the federal
government would publish a rule mandating vaccines for employees who work at
healthcare facilities that accept Medicare and Medicaid.46 Even though he stated a
month earlier that HHS would only require nursing homes to vaccinate their
employees,47 he expanded this mandate, announcing that the rule would require all
participating facilities to have their employees vaccinated.48
The Mandate
48.
CMS published that regulation—the mandate—on November 5, 2021.
86 Fed. Reg. at 61,555.

45 Id.
46 Id.
47 FACT SHEET: President Biden to Announce New Actions to Protect Americans from COVID-
19 and Help State and Local Leaders Fight the Virus, The White House (Aug. 18, 2021),
https://www.whitehouse.gov/briefing-room/statements-releases/2021/08/18/fact-sheet-president-
biden-to-announce-new-actions-to-protect-americans-from-covid-19-and-help-state-and-local-
leaders-fight-the-virus/.
48 Biden-Harris Administration to Expand Vaccination Requirements for Health Care Settings,
CMS (Sept. 9, 2021), https://www.cms.gov/newsroom/press-releases/biden-harris-administration-
expand-vaccination-requirements-health-care-settings.
Case 3:21-cv-02722-MCR-HTC Document 1 Filed 11/17/21 Page 17 of 36

49.
The mandate directs participating facilities49 to ensure that covered
employees50 submit to COVID-19 vaccination, unless the employees are eligible for
a religious or medical exemption. Id. at 61,572.
50.
The mandate deploys “a common set of provisions for each”
participating facility; there are “no substantive regulatory differences across
settings.” Id. at 61,570.
51.
It operates in two phases. Phase 1 requires that covered employees
receive either the first dose of a two-dose vaccine or the sole dose of a single-dose
vaccine by December 6, 2021. Id. at 61,573. Phase 2 requires that covered employees
receive the second dose of a two-dose vaccine by January 4, 2022. Id.
52.
To comply with the mandate, a participating facility must implement a
“process for tracking and securely documenting the COVID-19 vaccination status

49 Participating facilities subject to the mandate include: ambulatory surgical centers; hospices;
psychiatric residential treatment facilities; programs of all-inclusive care for the elderly; hospitals;
long term care facilities, including skilled nursing facilities and nursing facilities, generally
referred to as nursing homes; intermediate care facilities for individuals with intellectual
disabilities; home health agencies; comprehensive outpatient rehabilitation facilities; critical
access hospitals; clinics, rehabilitation agencies, and public health agencies as providers of
outpatient physical therapy and speech-language pathology services; community mental health
centers; home infusion therapy suppliers; rural health clinics/federally qualified health centers; and
end-stage renal disease facilities. 86 Fed. Reg. at 61,569–70.
50 Covered employees subject to the mandate include: facility employees; licensed practitioners;
students, trainees, and volunteers; and individuals who provide care, treatment, or other services
for the facility and/or its patients, under contract or other arrangement. 86 Fed. Reg. 61,570. The
requirements also extend to staff who provide care outside of a formal clinical setting and to “any
individual that performs their duties at any site of care, or has the potential to have contact with
anyone at the site of care.” Id. at 61,570–71. Employees working 100% remotely are exempt. Id.
at 61,571.
Case 3:21-cv-02722-MCR-HTC Document 1 Filed 11/17/21 Page 18 of 36

of all staff,” including booster-shot status. 42 C.F.R. § 416.51(c)(3)(iv)–(v). It must
also “track[] and securely document[]” all exemptions. Id. § 416.51(c)(3)(vi)–(vii).
And it must implement “[c]ontingency plans” for all persons who are “not fully
vaccinated.” Id. § 416.51(c)(3)(x).
53.
As for enforcement, CMS intends to issue “interpretive guidelines” that
outline “enforcement remedies” CMS can pursue against participating facilities that
do not comply. 86 Fed. Reg. at 61,574. These will include “civil money penalties,
denial of payments for new admissions, or termination of the Medicare/Medicaid
provider agreement.” Id. A senior White House official has made clear that CMS
“will not hesitate to use [its] full enforcement authority” to carry out the mandate.51
54.
CMS, however, does not intend to enforce the mandate alone—it
expects the States to help. Consistent with their contracts with CMS, see 42 U.S.C.
§ 1395aa(a), States must verify that healthcare facilities operating in their borders
comply with the mandate. CMS plans to “advise and train State surveyors on how
to assess compliance with the new requirements” and how to review “the entity’s
records of staff vaccinations.” 86 Fed. Reg. at 61,574. It will also “instruct surveyors

51 Background Press Call on OSHA and CMS Rules for Vaccination in the Workplace, The White
House
(Nov.
3,
2021),
https://www.whitehouse.gov/briefing-room/press-
briefings/2021/11/04/background-press-call-on-osha-and-cms-rules-for-vaccination-in-the-
workplace/.
Case 3:21-cv-02722-MCR-HTC Document 1 Filed 11/17/21 Page 19 of 36

to conduct interviews staff [sic] to verify their vaccination status,” and will tell
surveyors how they “should cite” facilities “when noncompliance is identified.” Id.
55.
CMS “expect[s]” its vaccine mandate “to remain relevant for some time
beyond the end” of the declared public health emergency and anticipates retaining
the mandate “as a permanent requirement for facilities.” Id. at 61,574.
56.
The mandate has “near-universal applicability” to healthcare staff,
covering an estimated 10.3 million employees. Id. at 61,603. By CMS’s own
estimate, about 2.4 million of these employees are unvaccinated. Id. at 61,607. And,
as CMS concedes, the mandate’s chief aim is to coerce these unvaccinated
employees to submit to vaccination upon pain of unemployment. See id. (“The most
important inducement will be the fear of job loss, coupled with the examples set by
fellow vaccine-hesitant workers who are accepting vaccination more or less
simultaneously”); id. at 61,608 (“[I]t is possible there may be disruptions in cases
where substantial numbers of health care staff refuse vaccination and are not granted
exemptions and are terminated, with consequences for employers, employees, and
patients.”).
CMS’s Failure to Consult or Engage in Notice and Comment
57.
CMS concedes that this is new ground for the agency. By its own
admission, it has “not previously required” mandatory vaccinations as a condition
for participation in Medicare or Medicaid. Id. at 61,567. In fact, the federal
Case 3:21-cv-02722-MCR-HTC Document 1 Filed 11/17/21 Page 20 of 36

government has never required any private industry to submit to mandatory
vaccination.
58.
Despite this marked departure from prior practice, though, CMS did not
“consult” with “appropriate State agencies” before issuing its Mandate, as it is
required to do under 42 U.S.C. § 1395z. Id. at 61,567. In CMS’s view, the
consultation statute does not require that it consult before publishing a rule. Id. And
even if it did, says CMS, there is no agency with which it would be “appropriate” to
consult before publishing the rule “[g]iven the urgent need” for a mandate here. Id.
59.
Similarly, CMS did not engage with interested stakeholders through the
notice and comment process. Id. at 61,583 (citing 5 U.S.C § 553(b); 42 U.S.C
§ 1395hh(b)(1)). Instead, it found for “good cause” that it would “be impracticable
and contrary to the public interest . . . to undertake normal notice and comment
procedures.” Id. at 61,586. It supported its good-cause determination based
primarily on the COVID-19 pandemic, the Delta variant, and the upcoming flu
season. See id. at 61,583–84.
CMS’s Justifications for the Mandate
60.
In justifying its mandate, CMS offers internally inconsistent reasoning
and fails to adequately consider data that undermined its decision.
61.
To start, CMS claims to consider “concerns about health care workers
choosing to leave their jobs rather than be vaccinated,” yet it ultimately finds that
Case 3:21-cv-02722-MCR-HTC Document 1 Filed 11/17/21 Page 21 of 36

the mandate was justified given that there is “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.
62.
This lack of data, however, is not cause to issue an industry-wide
mandate; it is cause to exercise restraint in issuing such a mandate.
63.
As CMS concedes, there “might be a certain number of health care
workers who choose” to leave the medical field because of the mandate. Id. at
61,569. And because it is “unknown . . . how rapidly those quitting rather than being
vaccinated could be replaced,” id. at 61,612, CMS admits that current “endemic staff
shortages . . . may be made worse if any substantial number of unvaccinated
employees leave health care employment altogether,” id. at 61,607. Indeed, given
the already “critical staffing shortage,” id. at 61,559, CMS acknowledges that
worker resignations need not even be substantial to do damage: If “[e]ven a small
fraction of” those CMS pejoratively labels “recalcitrant unvaccinated employees”
quit, it “could disrupt facility operations.” Id. at 61,612. In some cases, this impact
will be “disastrous,”52 especially in rural areas, which, as CMS admits, are “having
greater problems with employee vaccination.” Id. at 61,613.

52 Health care group worried vaccine mandate will impact Missouri nursing homes, Fox 2 Now
(Nov. 5, 2021), https://fox2now.com/news/health-care-group-worried-vaccine-mandate-will-
impact-missouri-nursing-homes/.
Case 3:21-cv-02722-MCR-HTC Document 1 Filed 11/17/21 Page 22 of 36

64.
Along with this, CMS recognizes that the “providers and suppliers
regulated under this rule are diverse in nature, management structure, and size.” Id.
at 61,602. Even so, CMS relies mostly on facts and figures involving long term care
facilities—providers who serve mostly elderly and often immunocompromised
patients—to justify applying the mandate to other Medicare- and Medicaid-certified
providers. See, e.g., id. at 61,585 (discussing “case rates among [long term care]
facility residents,” and claiming, without citation that those facilities’ “experience may
generally be extrapolated to other settings”). CMS does so despite conceding that
“[a]ge remains a strong risk factor for severe COVID-19 outcomes,” id. at 61,566,
and that “risk of death from infection from an unvaccinated 75- to 84-year-old person
is 320 times more likely than the risk for an 18- to 29-years old person,” id. at 61,610
n.247.
65.
CMS also claims to have “considered requiring daily or weekly testing
of unvaccinated individuals” instead of mandatory vaccination. Id. at 61,614. But it
rejects this alternative in about a sentence, concluding that vaccination is a “more
effective infection control measure.” Id. OSHA, by contrast, issued a vaccine
mandate on the same day that includes a weekly testing alternative. See COVID-19
Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61,402,
61,450 (Nov. 5, 2021). Indeed, despite concluding that testing is “not as effective as
vaccination,” OSHA permitted testing because it is “still effective” and because
Case 3:21-cv-02722-MCR-HTC Document 1 Filed 11/17/21 Page 23 of 36

OSHA had concerns about imposing a “strict vaccination mandate with no
alternative” on such short notice given the potential “economic and health impacts”
of such a decision.53 Id. at 61,433, 61,436.
66.
CMS further “considered whether it would be appropriate to limit
COVID-19 vaccination requirements to staff who have not previously been infected
by SARS-CoV-2.” 86 Fed. Reg. at 61,614. Yet it decides against that option because
it does not think that “natural immunity” is “equivalent to receiving the COVID-19
vaccine.” Id. at 61,559. Elsewhere, however, CMS recognizes the value of natural
immunity when it states that each day 100,000 people are “recover[ing] from
infection,” that they “are no longer sources of future infections,” and that their natural
immunity “reduce[s] the risk to both health care staff and patients substantially.” Id.
at 61,604 (emphasis added). And indeed, a highly reported study from Israel found
that “natural immunity confers longer lasting and stronger protection” against the
Delta variant than vaccination.54
67.
CMS claims that the mandate is needed to protect patients from
COVID-19 infection, yet it does not require that patients be vaccinated and

53 OSHA also could not establish a “grave danger” to most healthcare workers because it found
that its June ETS adequately protects against COVID-19 risk. 86 Fed. Reg. at 61,421. CMS does
not acknowledge this finding.
54 See Sivan Gazit et al., Comparing SARS-CoV-2 natural immunity to vaccine-induced immunity:
reinfections
versus
breakthrough
infections,
medRxiv
(Aug.
24,
2021),
https://www.medrxiv.org/content/10.1101/2021.08.24.21262415v1.
Case 3:21-cv-02722-MCR-HTC Document 1 Filed 11/17/21 Page 24 of 36

recognizes that “the effectiveness of the vaccine to prevent disease transmission by
those vaccinated [is] not currently known.” Id. at 61,615.
Irreparable Harm to Florida
68.
The mandate places Florida in an untenable position. On the one hand,
if Florida refuses to comply with the mandate, its state-run facilities that participate
in Medicare and Medicaid will be subject to fines and lose millions of dollars in
funding. On the other hand, if Florida complies with the mandate, its facilities will
lose critical staff, exacerbating an already-severe staffing crisis. To weather the
staffing dip, its facilities will either need to pay exorbitant premiums to contract
staffing agencies or provide a diminished quality of patient care. They will also bear
the cost of ensuring that their employees have complied with the mandate, which
they cannot recover in a suit against the federal government. See Chiles v.
Thornburgh, 865 F.2d 1197, 1209 (11th Cir. 1989); Odebrecht Const., Inc. v. Sec’y,
Fla. Dep’t of Transp., 715 F.3d 1268, 1289 (11th Cir. 2013). And adding insult to
injury, compliance will make Florida complicit in an unlawful policy that it
fundamentally opposes, undermining its sovereignty.
69.
Florida’s AHCA also faces an equally untenable choice. It is obligated
by contract and the mandate to survey participating facilities to verify compliance
with the mandate. If it refuses to comply, it stands to lose millions in federal funding.
And if it submits, it will be forced to expend additional resources while carrying out
Case 3:21-cv-02722-MCR-HTC Document 1 Filed 11/17/21 Page 25 of 36

CMS’s compliance checks, which it again cannot recover in a suit against the federal
government. See Chiles, 865 F.2d at 1209.
70.
Further, the mandate will require private healthcare facilities in Florida
to bear the administrative cost of ensuring compliance with the mandate, which they
too cannot recover. Id. They will also lose employees who refuse to submit to
vaccination, further straining the resources of those facilities, injuring the public
health, and taxing Florida’s economy.
71.
Finally, the Florida Legislature is currently contemplating legislation
that would prohibit vaccine mandates.55 This legislation is likely to pass within the
next few days. Once it does, Florida will face an additional sovereign injury.
CLAIMS
COUNT 1
Agency action that is not in accordance with law
and is in excess of authority, in violation of the APA
72.
Florida repeats and incorporates by reference ¶¶ 1–71.
73.
Under the APA, a court must “hold unlawful and set aside agency
action” that is “not in accordance with law,” “in excess of statutory . . . authority, or

55 Governor DeSantis Joined By President Simpson and Speaker Sprowls to Announce Legislative
Agenda for Special Session of the Florida Legislature, Florida Governor’s Office (Nov. 8, 2021),
https://www.flgov.com/2021/11/08/governor-desantis-joined-by-president-simpson-and-speaker-
sprowls-to-announce-legislative-agenda-for-special-session-of-the-florida-legislature/.
Case 3:21-cv-02722-MCR-HTC Document 1 Filed 11/17/21 Page 26 of 36

limitations, or short of statutory right,” or “without observance of procedure required
by law.” See 5 U.S.C. § 706(2)(A), (C)–(D).
74.
The mandate is contrary to law for at least two reasons.
75.
First, the mandate violates 42 U.S.C. § 1395z because it was issued
without required consultation with the States.
76.
Under § 1395z, CMS “shall consult with appropriate State agencies and
recognized national listing or accrediting bodies” in “carrying out [its] functions”
relating to “determination of conditions of participation” for many healthcare
providers subject to the mandate. 42 U.S.C. § 1395z.56 CMS did not do so.
77.
Second, the mandate exceeds CMS’s statutory authority.
78.
Indeed, Congress speaks clearly when it “authoriz[es] an agency to
exercise powers of vast economic and political significance.” Ala. Ass’n of Realtors,
141 S. Ct. at 2489. And courts apply a presumption that Congress “preserves the
constitutional balance between the National Government and the States.” Bond v.
United States, 572 U.S. 844, 862 (2014). But nothing in the several provisions that
govern Medicaid and Medicare clearly authorizes a vaccine mandate.

56 Specifically, the consultation requirement applies to conditions of participation for hospitals
under § 1395x(e)(9), psychiatric hospitals under § 1395x(f)(4), skilled nursing facilities under
§§ 1395x(j) and 1395i-3, home health agencies under § 1395x(o)(6), comprehensive outpatient
rehabilitation facilities under § 1395x(cc)(2), hospices under § 1395x(dd)(2), critical access
hospitals under §§ 1395x(mm)(1) and 1395i-4(e), and ambulatory surgical centers under
§ 1395k(a)(2)(F)(i).
Case 3:21-cv-02722-MCR-HTC Document 1 Filed 11/17/21 Page 27 of 36

79.
To the contrary, § 1395 makes clear that no federal officer may
“exercise any supervision or control” over (a) “the practice of medicine or the
manner in which medical services are provided,” (b) “the selection, tenure, or
compensation of any officer or employee of any institution, agency, or person
providing health services,” or (c) “the administration or operation of any such
institution, agency, or person.” 42 U.S.C. § 1395. The mandate does just that.
80.
For these reasons, the mandate is contrary to law.
COUNT 2
Failure to conduct notice and comment in violation of the APA
81.
Florida repeats and incorporates by reference ¶¶ 1–71.
82.
The APA requires notice of, and comment on, agency rules that “affect
individual rights and obligations.” Chrysler Corp. v. Brown, 441 U.S. 281, 303
(1979); see 5 U.S.C. §§ 553, 706(2)(D). The Medicare and Medicaid schemes track
these requirements. See 42 U.S.C § 1395hh(b)(1).
83.
CMS concedes that it did not engage in notice and comment. 86 Fed.
Reg. at 61,583. Instead, it invokes the “good cause” exception, which permits an
agency to waive notice and comment when it finds for “good cause” that the process
is “impracticable, unnecessary, or contrary to the public interest.” Id. at 61,583
(citing 5 U.S.C § 553(b)(B)). This standard is notoriously difficult to satisfy. See
Mack Trucks, Inc. v. EPA, 682 F.3d 87, 93 (D.C. Cir. 2012).
Case 3:21-cv-02722-MCR-HTC Document 1 Filed 11/17/21 Page 28 of 36

84.
CMS relies on the COVID-19 pandemic for good cause, along with
related circumstances like the Delta variant. Id. at 61,583–84. Of course, no one
contests the seriousness of the COVID-19 pandemic. But after almost two years,
COVID-19 is a persistent feature of life and cannot itself constitute good cause. See
Becerra, 2021 WL 2514138, at *45; Regeneron Pharms., Inc. v. HHS, 510 F. Supp.
3d 29, 48 (S.D.N.Y. 2020). To hold otherwise would effectively repeal notice and
comment requirements for the duration of the pandemic.
85.
In fact, CMS’s own delay is what caused its so-called emergency.
Vaccines have been available to healthcare workers for nearly a year. 86 Fed. Reg.
at 61,584.57 But until now, CMS made no efforts to mandate vaccination. “Good
cause cannot arise as a result of the agency’s own delay.” Nat. Res. Def. Council v.
Nat’l Highway Traffic Safety Admin., 894 F.3d 95, 114 (2d Cir. 2018). And CMS
waited nearly three additional months between announcing the mandate and
publishing it.
86.
CMS’s other good-cause justifications fare no better. Most prevalent, it
cites the possibility for a “more severe” flu season as support for good cause given
the risks of “coinfection” and increased “stress” on the healthcare system. See 86

57 Maggie Fox, Some Americans should start getting the first Covid-19 vaccine today. It will take
months
before
everyday
people
get
the
shots,
CNN
(Dec.
14,
2020),
https://www.cnn.com/2020/12/14/health/covid-vaccine-timeline/index.html
(reporting
that
healthcare workers would be eligible for vaccination in December 2020).
Case 3:21-cv-02722-MCR-HTC Document 1 Filed 11/17/21 Page 29 of 36

Fed. Reg. at 61,584. Yet in the next breath, CMS admits that “the intensity of the
upcoming 2021–2022 influenza season cannot be predicted” and that “influenza
activity during the 2020–2021 season was low throughout the U.S.” Id.
87.
Moreover, notice and comment is needed to bolster the “fairness,
wisdom, and political legitimacy” of a rule of this magnitude. Becerra, 2021 WL
2514138, at *45 (quoting Hickman & Pierce, Administrative Law Treatise § 5.10
(6th ed. 2020)).
88.
For these reasons, notice and comment was required.
COUNT 3
Arbitrary and capricious agency action in violation of the APA
89.
Florida repeats and incorporates by reference ¶¶ 1–71.
90.
Under the APA, a court must “hold unlawful and set aside agency
action” that is “arbitrary [or] capricious.” 5 U.S.C. § 706(2)(A). The mandate is
arbitrary and capricious for several reasons.
91.
First, the mandate does not adequately consider the alternative of
testing requirements. See DHS v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1913
(2020). CMS claims to have “considered requiring daily or weekly testing of
unvaccinated individuals” instead of mandatory vaccination. 86 Fed. Reg. at 61,614.
But it dismisses this alternative in a cursory sentence, proclaiming that vaccination
is a “more effective infection control measure.” Id.
Case 3:21-cv-02722-MCR-HTC Document 1 Filed 11/17/21 Page 30 of 36

92.
Second, CMS fails to “articulate a satisfactory explanation” for why its
mandate is “rational” given that unvaccinated workers may flee the industry. Motor
Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
93.
Third, CMS fails to adequately consider the impact its mandate will
have on vaccination-education efforts. In Florida, those efforts have had great
success, sometimes raising vaccination rates by ten percent.58 Yet CMS fails to
consider to what extent its mandate will “chill” individuals who might otherwise
take the vaccine voluntarily.
94.
Fourth, CMS does not rationally connect its statistics to most of the
healthcare facilities covered by its mandate. Indeed, CMS recognizes that the
“providers and suppliers regulated under this rule are diverse in nature, management
structure, and size.” Id. at 61,602. Still, CMS relies mostly on facts and figures
involving long term care facilities—providers that serve mostly elderly or
immunocompromised patients—to justify applying the mandate to other providers.
See, e.g., id. at 61,585.
95.
Fifth, CMS does not consider the rate at which “game-changing”
COVID-19 treatments minimize the more-serious health risks of COVID-19. Nor

58 Hannah Mitchell, ‘Like hand-to-hand combat’: Florida health system battles vaccine hesitancy
1
employee
at
a
time,
Becker’s
Hospital
Review
(Nov.
4,
2021),
https://www.beckershospitalreview.com/hospital-management-administration/like-hand-to-hand-
combat-florida-health-system-battles-vaccine-hesitancy-1-employee-at-a-time.html.
Case 3:21-cv-02722-MCR-HTC Document 1 Filed 11/17/21 Page 31 of 36

does CMS consider the viability of state-by-state approaches to mandatory
vaccination, despite acknowledging that, in some States, COVID-19 cases “are
trending downward.” Id. at 61,583–84.
96.
Sixth, CMS concludes that prior COVID-19 infection should not
qualify a covered employee for an exemption from the mandate because it is not
equivalent to receiving a COVID-19 vaccine. Id. at 61,559, 61,614. Elsewhere,
however, CMS recognizes the value of natural immunity. See id. at 61,604 (finding
natural immunity “reduce[s] the risk to both health care staff and patients
substantially”); id. (noting that those who recover are “in very rare cases still
infectious”).
97.
Seventh, CMS inconsistently claims the mandate will protect patients
while recognizing, in its cost-benefit analysis, that “the effectiveness of the vaccine
to prevent disease transmission by those vaccinated [is] not currently known.” E.g.,
86 Fed. Reg. at 61,569, 61,615.
98.
Eighth, CMS fails to consider the interests of millions of healthcare
workers who pursued their careers without knowing they would be subject to
mandated vaccination. Regents, 140 S. Ct. at 1913. And it ignores the reliance
interests of healthcare employers, including the States, who ordered their affairs
under the assumption that Medicaid and Medicare dollars would be available
without this onerous condition.
Case 3:21-cv-02722-MCR-HTC Document 1 Filed 11/17/21 Page 32 of 36

99.
Ninth, the mandate is the product of political pressure, not measured
judgment. Aera Energy LLC v. Salazar, 642 F.3d 212, 220 (D.C. Cir. 2011). The
true impetus is clear: facing a scandal over his actions in Afghanistan, dismal
approval numbers on his COVID response, and an inability to advance his legislative
agenda, President Biden succumbed to pressure to control the healthcare decisions
of millions. He did so even though his Administration had assured the public that
vaccine mandates are “not the role of the federal government.”59
100. Finally, CMS fails to adequately explain its extreme departure from its
prior practice of not mandating vaccines. See E. Bay Sanctuary Covenant v. Trump,
349 F. Supp. 3d 838, 858 (N.D. Cal. 2018); accord Regents, 140 S. Ct. at 1913.
101. For these reasons, the mandate is arbitrary and capricious.
COUNT 4
Violation of the Spending Clause
102. Florida repeats and incorporates by references ¶¶ 1–71.
103. The mandate is also an unconstitutional condition on Florida’s receipt
of federal funds.
“[I]f Congress intends to impose a condition on the grant of federal moneys,
it must do so unambiguously,” so “States [can] exercise their choice knowingly.”

59 Press Briefing by Press Secretary Jen Psaki, July 23, 2021, The White House (July 23, 2021),
https://www.whitehouse.gov/briefing-room/press-briefings/2021/07/23/press-briefing-by-press-
secretary-jen-psaki-july-23-2021/.
Case 3:21-cv-02722-MCR-HTC Document 1 Filed 11/17/21 Page 33 of 36

Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). Here, Florida
agreed to a lucrative contract, paying millions in federal funds, to enforce Medicare
and Medicaid requirements on healthcare providers. When it agreed to do so,
however, it was given no notice that it would have to enforce vaccination
requirements. Florida now faces the untenable choice of refusing to enforce the
mandate, and losing millions, or acquiescing. But the Spending Clause does not
allow the government to put Florida to this choice—any conditions must have been
disclosed to Florida from the beginning. Pennhurst, 451 U.S. at 17; cf. NFIB, 567
U.S. at 584.
104. For this reason, the mandate violates the Spending Clause.
COUNT 5
Declaratory judgment that the Biden Administration’s policy is unlawful
105. Florida repeats and incorporates by reference ¶¶ 1–71.
106. For the same reasons described in Counts 1–4, Florida is entitled to a
declaratory judgment that Defendants are violating the law.
PRAYER FOR RELIEF

For these reasons, Florida asks the Court to:
a) Hold unlawful and set aside the mandate.
b) Issue a temporary restraining order and preliminary and permanent
injunctive relief enjoining Defendants from enforcing the mandate.
Case 3:21-cv-02722-MCR-HTC Document 1 Filed 11/17/21 Page 34 of 36

c) Issue declaratory relief declaring Defendants’ actions unlawful.
d) Award Florida costs and reasonable attorney’s fees.
e) Award such other relief as the Court deems equitable and just.
Case 3:21-cv-02722-MCR-HTC Document 1 Filed 11/17/21 Page 35 of 36

Respectfully submitted,
Ashley Moody
ATTORNEY GENERAL

John Guard (FBN 374600)
CHIEF DEPUTY ATTORNEY GENERAL

James H. Percival (FBN 1016188)
DEPUTY ATTORNEY GENERAL OF LEGAL POLICY

Henry C. Whitaker (FBN 1031175)
SOLICITOR GENERAL

Daniel Bell (FBN 1008587)
CHIEF DEPUTY SOLICITOR GENERAL

/s/ David M. Costello

David M. Costello (FBN 1004952)
ASSISTANT SOLICITOR GENERAL

Natalie Christmas (FBN 1019180)
ASSISTANT ATTORNEY GENERAL OF LEGAL POLICY

Jason H. Hilborn (FBN 1008829)
DEPUTY SOLICITOR GENERAL

Office of the Attorney General
The Capitol, Pl-01
Tallahassee, Florida 32399-1050
(850) 414-3300
(850) 410-2672 (fax)
david.costello@myfloridalegal.com

Counsel for the State of Florida

Case 3:21-cv-02722-MCR-HTC Document 1 Filed 11/17/21 Page 36 of 36

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Original: archive.org

Complaint — Florida v. HHS

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