Emergency Motion for Injunction Pending Appeal — Florida v. HHS

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UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF FLORIDA 
PENSACOLA DIVISION 
 
STATE OF FLORIDA,  
 
 
Plaintiff, 
 
v.  
 
 
 
 
 
No. 3:21-cv-2722-MCR-HTC 
 
DEPARTMENT OF HEALTH AND  
HUMAN SERVICES, et al., 
 
 
 
 
 
Defendants. 
_________________________________/ 
 
FLORIDA’S EMERGENCY MOTION  
FOR INJUNCTION PENDING APPEAL  
Three days ago, this Court denied Florida’s Motion for Temporary 
Restraining Order or Preliminary Injunction, concluding that Florida has not 
established that it will suffer irreparable harm because of CMS’s vaccine mandate. 
ECF No. 6 (Order). Yet Florida has already suffered irreparable harm: The mandate 
purports to preempt state laws that bar employers from requiring employees to 
submit to vaccination, and Florida’s officials must violate such state laws to comply 
with the mandate. Moreover, the other harms that the Court addressed are neither 
speculative nor reparable. And the Court did not address a host of other impending 
harms, each of which independently suffices to satisfy the irreparable-harm element.  
In less than two weeks, CMS’s mandate will gut a healthcare industry already 
on the brink. The rule requires the first dose of the vaccine no later than December 

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6, 2021. Medicare and Medicaid Programs: Omnibus COVID-19 Health Care Staff 
Vaccination, 86 Fed. Reg. 61,555, 61,573 (Nov. 5, 2021). To prevent those harms, 
Florida has appealed the Court’s Order. ECF No. 8. And given the urgency and 
seriousness of this matter, it now moves for an emergency injunction pending appeal. 
Florida intends to seek an injunction pending appeal with the Eleventh Circuit no 
later than Monday, November 29, 2021, should this Court not afford Florida relief 
before then. 
LEGAL STANDARD 
Even when a court “refuses . . . an injunction,” it may nevertheless “grant 
an injunction” while “an appeal” from its order “is pending.” Fed. R. Civ. P. 62(d). 
The relevant considerations are substantially that of a request for preliminary 
injunction. See Ga. Republican Party, Inc. v. Sec’y of State for Ga., 2020 WL 
7488181, at *1 (11th Cir. Dec. 21, 2020). The movant must show “(1) a substantial 
likelihood that [the movant] 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 v. McDermott, 234 F.3d 1130, 1132 (11th Cir. 2000) (en banc). 
The fact that unlawful government action purports to stem the spread of COVID-19 
does not prevent a movant from meeting the third and fourth prongs. See Roman 
Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020). 

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ARGUMENT 
To avoid needlessly expending the Court’s resources, Florida relies on and 
incorporates the arguments raised in its Motion for Temporary Restraining Order or 
Preliminary Injunction, ECF No. 2.1 It will instead focus on the Court’s concerns 
about irreparable harm and on irreparable harms that the Court did not address. 
1. 
To start, the Court rejected Florida’s argument that the mandate 
infringes on Florida’s sovereignty by purporting to preempt state law prohibiting 
vaccine mandates. Order at 10. The Court reasoned that the argument was premature 
because Florida is merely “contemplating” a ban on vaccine mandates. Id. It also 
held that the argument “lacks merit” at any rate. Id. With respect, the Court was 
mistaken on both the facts and the law. 
On the facts, when this Court issued its order on November 20, Florida was 
not merely contemplating a ban on vaccine mandates: It had enacted one. E.g., Fla. 
Stat. §§ 381.00317, 112.0441, 381.00319 (enacted Nov. 18, 2021). So Florida’s 
sovereign harm began before the Court denied the State’s motion and is ongoing, 
not “speculative.” Order at 10. 
 
1 In its motion, Florida relied on a declaration from the Department of Corrections stating 
that a private hospital in Florida was requiring correctional officers to comply with the mandate to 
enter its facilities. See ECF No. 2, at 11. Since that time, the hospital has informed the Department 
that it no longer intends to enforce that requirement.  

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On the law, Florida’s sovereign harm is irreparable. The “inability to enforce 
its duly enacted plans clearly inflicts irreparable harm on the State.” Abbott v. Perez, 
138 S. Ct. 2305, 2324 n.17 (2018); see also Hand v. Scott, 888 F.3d 1206, 1215 (11th 
Cir. 2018) (Florida suffered irreparable harm when “it could not apply its own 
laws”). As does federal action that infringes on a State’s “sovereign interests and 
public policies.” Kansas v. United States, 249 F.3d 1213, 1227–28 (10th Cir. 2001); 
see also West Virginia v. Dep’t of Treasury, 2021 WL 5300944, at *19 (N.D. Ala. 
Nov. 15, 2021) (federal law caused irreparable harm when it “intrud[ed] on [a] 
State’s ability to exercise its indispensable sovereign power to tax” (quotations 
omitted)). The mandate does precisely that: It claims to preempt conflicting state 
laws, bans on vaccine mandates included. 86 Fed. Reg. at 61,613. In so doing, the 
mandate threatens to hobble Florida’s ability to enforce its chosen policy initiatives, 
undermining its sovereignty without financial recourse. See Odebrecht Const., Inc. 
v. Sec’y, Fla. Dep’t of Transp., 715 F.3d 1268, 1289 (11th Cir. 2013). 
The mandate also inflicts sovereign harm in another way. It “forc[es] state 
officials to choose between violating a federal rule to comply with [state] law, and 
vice versa,” Texas v. United States, 95 F. Supp. 3d 965, 981 (N.D. Tex. 2015), an 
injury to the State’s autonomy that is irreparable because it cannot be remedied 
financially, Odebrecht, 715 F.3d at 1289. 

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2. 
Next, the Court rejected Florida’s claim that it will lose state employees 
because some will not take the vaccine, concluding that Florida lacked “supporting 
factual evidence.” Order at 8–9. But Florida has in fact shown irreparable harm on 
this basis. 
First, in establishing irreparable harm, Florida need not show that impending 
harm is “inevitable.” Humana, Inc. v. Avram A. Jacobson, M.D., P.A., 804 F.2d 
1390, 1394 (5th Cir. 1986). It need show only that irreparable harm is “likely . . . in 
the absence of preliminary relief.” Benisek v. Lamone, 138 S. Ct. 1942, 1944 (2018). 
In making this determination, the Court should consider “the predictable effect of 
Government action on the decisions of third parties.” See Dep’t of Commerce v. New 
York, 139 S. Ct. 2551, 2566 (2019). And here, it is perfectly clear that a “predictable 
effect” of the mandate is the loss of healthcare employees.  
COVID-19 vaccines have been available to healthcare workers since 
December 2020.2 Even so, as CMS stressed in issuing its rule, 86 Fed. Reg. at 
61,604–06, many healthcare workers remain unvaccinated. For example, about 
“70% of the clinical licensed practical nurses” at Florida’s Walton Community 
Health Center are unvaccinated. ECF No. 2-3 ¶ 18. Similarly, Florida’s Agency for 
 
2 Medicare and Medicaid Programs: Omnibus COVID-19 Health Care Staff Vaccination, 
86 Fed. Reg. 61,555, 61,584 (Nov. 5, 2021); 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).  

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Health Care Administration (AHCA) found just a few months ago that 42% of 
Florida hospital workers were not vaccinated.3 And given the longstanding 
availability of COVID-19 vaccines, it is “predictable” that at least some of these 
workers have not yet taken a vaccine because they fundamentally oppose doing so 
and will not take one even on pain of termination. See Commerce, 139 S. Ct. at 2566.  
In fact, CMS has admitted as much. In issuing its mandate, it recognized that 
there “might be a certain number of health care workers who choose” to leave the 
medical field as a result. 86 Fed. Reg. at 61,569. It even cited one instance where 
triple-digit numbers of workers resigned or were fired from a single facility for 
refusing to take a vaccine. Id. at 61,569 n.155 (citing a report that 153 employees of 
Houston Methodist Hospital quit following its vaccination mandate).4 And these 
findings track data from a national poll published just a week before the mandate 
issued, which found that 72% of unvaccinated workers will quit rather than 
succumb.5 Altogether, this evidence more than establishes that, without an 
injunction, employee loss is likely to occur. See Benisek, 138 S. Ct. at 1944. 
 
3 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. 
4 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/. 
5 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/. 

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The Court denied Florida’s motion in part because it mistakenly thought that 
any “statements regarding employees’ intent to resign are hearsay.” Order at 9. But 
such statements fall within the state-of-mind exception to the hearsay rule. See Fed. 
R. Evid. 803(3). That exception permits the use of an out-of-court statement to show 
“the declarant’s then-existing state of mind (such as motive, intent, or plan).” Id. 
Here, any hearsay statements from employees merely establish that they intend to 
resign if forced to vaccinate, and are thus admissible under Rule 803(3). See, e.g., 
Christian Tennant Custom Homes of Fla., Inc. v. EBSCO Gulf Coast Dev., Inc., 2017 
WL 4102458, at *4 (N.D. Fla. Sept. 15, 2017) (Rodgers, C.J.) (holding that hearsay 
evidence was admissible under state-of-mind exception when it proved declarant’s 
intent to enter into a contract). 
And even if this exception did not apply, the Court may consider hearsay at 
“the preliminary injunction stage” if “the evidence is appropriate given the character 
and objectives of the injunctive proceeding.” Levi Strauss & Co. v. Sunrise Int’l 
Trading Inc., 51 F.3d 982, 985 (11th Cir. 1995) (quotation omitted). Hearsay 
evidence is no doubt appropriate here. CMS has given the States an exceedingly 
short timeframe to gather evidence to challenge the mandate—just 30 days, less than 
half the time CMS needed to craft the rule. See ECF No. 2 at 22. Making matters 
more difficult, vaccination status and preference is a deeply personal issue, so it is 
hard to obtain on-record statements from employees who plan to decline a vaccine. 

8 
 
These unique circumstances more than justify the use of hearsay evidence for 
purposes of a temporary injunction. E.g., ACLU of Fla., Inc. v. Lee, 2021 WL 
4350174, at *1 (N.D. Fla. July 1, 2021) (Winsor, J.) (considering hearsay statement 
at preliminary injunction phase); Noble v. Tooley, 125 F. Supp. 2d 481, 483 (M.D. 
Fla. 2000) (“Defendants’ hearsay objections to these exhibits are ill-taken at this 
stage of the proceedings” since “a district court may rely” on “affidavits and hearsay 
materials” at “the preliminary injunction stage.”). 
3. 
The Court also reasoned that the threat of lost federal funding will not 
irreparably harm Florida because it can recover any funds lost if it wins this lawsuit. 
Order at 9–10. And it held that, in any event, there is “no evidence to suggest” that 
the loss of federal funding will occur immediately on December 6, 2021, because 
the “asserted loss of staff is speculative,” particularly given the “availability of the 
exemption process provided in the interim final rule,” and because, “even if 
noncompliance occurs, any potential termination of funding would not occur on 
December 6.” Id. at 10. These conclusions, too, are mistaken. 
At the gate, even if Florida could recover federal funding withheld during any 
period of noncompliance, that would not compensate Florida for the wealth of 
services it would be unable to provide in the interim; for the patients it would lose 
to other facilities, Aurora Chi. Lakeshore Hosp. v. Azar, 356 F. Supp. 3d 749, 759 

9 
 
(N.D. Ill. 2018), vacated on other grounds, 2019 WL 6911965 (N.D. Ill. Dec. 19, 
2019); or for the employees it must cut loose in the process, see id.  
 Indeed, with federal funding uncertain, state-run health facilities will need to 
substantially scale back services, decimating their capacity to care for Florida’s 
citizens and eviscerating a large chunk of their medical revenue. See ECF No. 2-2 
¶ 15; ECF No. 2-3 ¶¶ 14, 22. As patients search for care elsewhere, many will 
establish relationships with new providers and are unlikely to return even if federal 
funding renews. See Aurora Chi. Lakeshore Hosp., 356 F. Supp. 3d at 759. And 
many state-run facilities will need to downsize their staff to weather the funding 
crunch, e.g., ECF No. 2-3 ¶¶ 14, 22, losing valuable employees that, given the fast-
paced healthcare market and the attractiveness of private-sector roles, predictably 
will not come back if funding ever returns, see ECF No. 2-2 ¶ 10; ECF No. 2-6 
¶¶ 15–16, 25. Even then, Florida will need to expend resources to facilitate the 
restaffing process. ECF No. 2-3 ¶¶ 11, 18.  
These harms are irreparable. Florida cannot recover damages for these losses 
in a suit against the federal government. Odebrecht, 715 F.3d at 1289. The harms 
will also occur, at latest, on December 6, when facilities, including Florida-owned-
and-operated facilities, must decide between complying with Florida law or 
complying with the mandate. And in reality, they will occur even earlier because 
Florida’s facilities must arrange to be compliant with the mandate by December 6. 

10 
 
In other words, harmful service- and staffing-related decisions are being made right 
now in anticipation of the December 6 deadline. 
At any rate, it is far from clear that Florida may recover all financial harms 
caused by the mandate. Florida has sued under the APA, which does not permit 
recovery of money damages. 5 U.S.C § 702; cf. Oak Lawn Pavilion, Inc. v. HHS, 
1999 WL 1023920, at *6 (N.D. Ill. Nov. 8, 1999) (claim for unpaid Medicare 
payments after termination of Medicare contract was claim for “money damages”). 
And some Florida facilities, consistent with state law, would likely refuse to comply 
with the mandate and cease billing for Medicare and Medicaid services altogether. 
We are unaware of a mechanism under which Florida could obtain monetary relief 
for the amounts that a facility could have billed (but did not in fact bill) even if, at 
the end of a very long day, CMS’s unlawful rule is struck down by the courts. 
Even if Florida’s lost federal funding is recoverable, its temporary loss still 
constitutes irreparable harm “where the loss threatens the very existence of [its 
facilities’] business.” Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985); 
see also GOS Operator, LLC v. Sebelius, 2012 WL 175056, at *4 (S.D. Ala. Jan. 20, 
2012) (threatened loss of Medicare/Medicaid funding constituted irreparable harm 
when the loss would effectively force facility to cease operating). Here, CMS has 
indicated that termination is on the table if a facility does not comply with the 
mandate, 86 Fed. Reg. at 61,574, and a senior White House official has made clear 

11 
 
that CMS “will not hesitate to use [its] full enforcement authority” to ensure that its 
mandate takes effect.6 Seeing as federal money makes up the lion’s share of funding 
for certain state facilities, e.g., ECF No. 2-3 ¶ 13–14, 21–22, even a temporary 
stoppage would be a death knell for their operations, a textbook irreparable injury, 
Wis. Gas Co., 758 F.2d at 674 (“Recoverable monetary loss may constitute 
irreparable harm only where the loss threatens the very existence of the movant’s 
business.”). 
Lastly, it does not matter whether CMS will strip Florida’s facilities of their 
funding when the clock strikes midnight on December 6. What matters is that, come 
December 6, Florida’s facilities will need to make an impossible decision: fire 
unvaccinated staff or risk defying federal law and suffering the consequences. And 
in any event, there is every reason to believe these consequences will follow swiftly. 
After all, CMS skipped notice and comment because its believes that the danger to 
patients is so great that it would “be contrary to the public interest to delay in 
imposing” a mandate. 86 Fed. Reg. at 61,586. It is thus likely that CMS will make 
 
6 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/. 

12 
 
good on its word and “will not hesitate to use [its] full enforcement authority”7 to 
ensure that its mandate takes effect.8 
4. 
Finally, the Court did not address the many other irreparable harms 
Florida will suffer because of the mandate. 
First, the Court did not consider the compliance costs that Florida’s facilities 
will pay under the mandate. Indeed, “complying with a regulation later held invalid 
almost always produces the irreparable harm of nonrecoverable compliance costs.” 
Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 220–21 (1994) (Scalia, J., 
concurring in part and in the judgment). As CMS acknowledges, the “initial costs of 
this rule fall almost entirely on health care providers and suppliers.” 86 Fed. Reg. at 
61,612; see also 86 Fed. Reg. at 61,613 (recognizing that “much,” yet not all, of the 
mandate’s costs are covered by the federal government). But because the federal 
government has sovereign immunity, Odebrecht, 715 F.3d at 1289, Florida will be 
unable “to recover the compliance costs [it] will incur,” even if the mandate “is 
 
7 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/. 
8 In all events, though Florida requests injunctive relief before December 6 given the 
deadline for the first vaccine dose, this Court’s injunction analysis is not tied to that date. The 
question for purposes of a temporary injunction is whether the irreparable harm is likely to “occur 
‘before a decision on the merits can be rendered.’” See McMahon v. City of Panama City Beach, 
180 F. Supp. 3d 1076, 1110 (N.D. Fla. 2016) (Walker, J.) (quoting Wright & Miller, Federal 
Practice and Procedure § 2948.1 (2d ed. 1995)). Given that CMS is likely to take quick 
enforcement action, Florida’s stated harms are likely to occur “before a decision on the merits” of 
Florida’s appeal “can be rendered,” even if they do not occur precisely on December 6. Id. 

13 
 
invalidated on the merits,” Texas v. EPA, 829 F.3d 405, 433 (5th Cir. 2016); see also 
Wis. Gas Co., 758 F.2d at 674 (costs imposed on parties are irreparable where they 
cannot be recovered “in the ordinary course of litigation”). 
Second, AHCA is obligated by its contract with CMS to ensure compliance 
with the mandate. ECF No. 2-1 ¶ 5. If it refuses to comply, it will be in breach of its 
contract with CMS and at risk of losing the contract’s multi-million-dollar value, id. 
¶ 9–11. 
Third, Florida suffers irreparable harm as parens patriae for the many 
Floridians who work in healthcare and do not wish to receive a vaccine, as well as 
the patients who will lose access to adequate medical care because of CMS’s 
mandate.9 A State has a paradigmatic sovereign interest both in “the health and well-
being—both physical and economic—of its residents in general” and in “assuring 
that the benefits of the federal system are not denied to its general population.” Alfred 
L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez, 458 U.S. 592, 607–08 (1982). It 
may assert those interests on its citizens’ behalf. See id. And the mandate irreparably 
 
9 To be sure, Massachusetts v. Mellon, 262 U.S. 447 (1923), recognized certain limits on 
the use of that standing theory against the federal government. But “there is a critical difference 
between allowing a State ‘to protect her citizens from the operation of federal statutes’ (which is 
what Mellon prohibits) and allowing a State to assert its rights under federal law (which it has 
standing to do).” Massachusetts v. EPA, 549 U.S. 497, 520 n.17 (2007). Because Florida asserts 
several federal rights here—including the notice and comment and consultation guarantees—it has 
parens patriae standing. See Texas v. United States, 328 F. Supp. 3d 662, 697 (S.D. Tex. 2018); 
Texas v. United States, 2021 WL 3025857, at *14 (S.D. Tex. July 16, 2021); Aziz v. Trump, 231 
F. Supp. 3d 23, 31–32 (E.D. Va. 2017). 

14 
 
injures those interests because it will likely cause healthcare employees to lose their 
jobs, supra at 5–6, exacerbating an already dire healthcare labor shortage, ECF No. 
2-4 ¶ 12; ECF No. 2-2 ¶ 10; ECF No. 2-5 ¶ 9; ECF No. 2-6 ¶¶ 16, 31, and leaving 
Florida’s citizens without access to vital medical care, ECF No. 2-3 ¶¶ 12, 14; see 
also Planned Parenthood of Kan. v. Andersen, 882 F.3d 1205, 1236–37 (10th Cir. 
2018) (patients suffered irreparable harm when facilities lost Medicaid funding). It 
will also force the States’ healthcare employees to forfeit control of their private 
medical choices, personal information, and bodily autonomy to their employers and 
to the federal government.  
CONCLUSION 
 
For the foregoing reasons, the Court should enjoin Defendants pending appeal 
from enforcing, implementing, or giving any effect to the mandate. 

15 
 
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 
 
 

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CERTIFICATE OF CONFERRAL 
Consistent with Local Rule 7.1(B), counsel conferred with Defendants in 
good faith about the relief requested in this motion. Counsel is authorized to 
represent that Defendants oppose the relief requested. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

17 
 
CERTIFICATE OF WORD COUNT 
Consistent with Local Rule 7.1(F), this motion contains 3,420 words.  
 
 

18 
 
CERTIFICATE OF SERVICE 
I hereby certify that on this 23rd day of November, 2021, a true and correct 
copy of the foregoing was filed with the Court’s CM/ECF system, which will 
provide service to all parties. 
 
 
 
 
 
 
 
/s/ David M. Costello 
 
 
 
 
 
 
 
 
Assistant Solicitor General

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