Order on Emergency Motion and Scheduling Evidentiary Hearing — Florida v. HHS (N.D. Fla.)

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UNITED STATES DISTRICT COURT · No. 3:21-cv-02722-MCR-HTC · Doc. 13 · 2021-11-27 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF FLORIDA 
PENSACOLA DIVISION 
 
STATE OF FLORIDA, 
 
 
Plaintiff, 
 
v. 
 
 
 
 
 
 
CASE NO. 3:21cv2722-MCR-HTC 
 
 
 
 
DEPARTMENT OF HEALTH AND  
HUMAN SERVICES, et al., 
 
 
Defendants. 
_________________________________/ 
 
ORDER 
 
Before the Court is the State of Florida’s Emergency Motion for Injunction 
Pending Appeal, ECF No. 9.  The relief requested will be denied, but on partial 
reconsideration, the Court finds it appropriate to schedule an expedited evidentiary 
hearing on Florida’s request for preliminary injunctive relief.1    
 
On November 20, 2021, this Court denied Florida’s request for a Temporary 
Restraining Order (“TRO”) and Preliminary Injunction.  ECF No. 6.  Florida sought 
to restrain and enjoin the implementation of an interim final rule issued on November 
5, 2021, by the Centers for Medicare and Medicaid Services (“CMS”), requiring 
COVID-19 vaccinations for all covered healthcare staff in state-run facilities that 
 
1 The Court does not reconsider its ruling denying the State of Florida’s motion for a 
temporary restraining order. 
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CASE NO. 3:21cv2722-MCR-HTC 
participate in Medicare and Medicaid programs, with a first vaccine dose to be 
administered by December 6, 2021.  See Omnibus COVID-19 Health Care Staff 
Vaccination, 86 Fed. Reg. 61555-01 (Nov. 5, 2021) (referenced as the “interim final 
rule with comment period” or “IFC,” which is the acronym used in the rule).  The 
IFC also requires covered healthcare staff to obtain a second COVID-19 vaccination 
dose to be completed by January 4, 2022, except for those who have been granted 
an exemption or for whom vaccination must be temporarily delayed for clinical 
reasons under CDC recommendations.  Id. at 61,572-73 (noting that certain allergies, 
recognized medical conditions, or religious beliefs, observances, or practices, may 
provide grounds for exemption).  The undersigned denied a TRO because there was 
no showing of irreparable injury to the State of Florida to justify an immediate 
injunction.  ECF No. 6.  More specifically, the Court found the agency heads’ 
predictions of widespread resignations were speculative and conclusory and that the 
threatened loss of federal funding would not occur on December 6, 2021, and 
moreover could be remediated through this suit brought pursuant to the 
Administrative Procedure Act (“APA”).  The Court also rejected as insufficient 
Florida’s claim of sovereign injury based on legislation prohibiting COVID-19 
mandates that the State Legislature was contemplating.   
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CASE NO. 3:21cv2722-MCR-HTC 
 
Florida has now appealed the Court’s denial of a TRO and seeks an injunction 
pending appeal, acknowledging that the same standard applies as for a preliminary 
injunction.  See Fed. R. Civ. P. 62(d) (authorizing the court to suspend, modify, 
restore, or grant an injunction when an appeal is pending from an order that either 
grants or refuses an injunction).  This relief is discretionary and is not granted as “a 
matter of right, even if irreparable injury might otherwise result.”  Nken v. Holder, 
556 U.S. 418, 433-34 (2009) (noting there is “substantial overlap” between the 
decision to stay a judgment and the factors governing preliminary injunction).  
Courts considering a stay or injunction pending appeal look to: “(1) whether the 
[injunction] applicant has made a strong showing that he is likely to succeed on the 
merits; (2) whether the applicant will be irreparably injured absent a stay; (3) 
whether issuance of the stay will substantially injure the other parties interested in 
the proceeding; and (4) where the public interest lies.”  Id. at 426 (concluding the 
traditional factors apply).   
 
Florida renews its prior arguments and argues that this Court failed to consider 
several asserted irreparable harms that justify relief.  For one, Florida argues that the 
State Legislature in fact passed a bill on November 18, 2021 (after its brief was filed 
but before this Court’s decision), which prohibits private and public employer 
COVID-19 vaccination mandates.  See Fla. Stat. §§ 381.00317, 112.0441 (Nov. 18, 
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CASE NO. 3:21cv2722-MCR-HTC 
2021).  Florida argues that the IFC’s “interference” by preempting this state policy 
(which was enacted after the IFC was issued) demonstrates an irreparable sovereign 
injury by precluding Florida from enforcing its own law.  Florida argues that an 
additional irreparable sovereign injury will occur based on the conflict between state 
and federal law that will force the Florida public health agency and facility heads to 
make the untenable choice of deciding which law to follow and which to violate.  
Florida also asserts that its sovereign interests as parens patriae are implicated as it 
seeks to protect Floridians who work in healthcare and do not wish to receive a 
vaccine, as well as patients who will lose access to adequate medical care because 
of the CMS mandate.      
 
The Court acknowledges that it did not previously consider the impact of 
Florida’s then unenacted law, but the Court will consider it now, given its passage.2  
In relevant part, the new Florida law prohibits public employers from imposing any 
COVID-19 mandate on a public employee and subjects a public employer to a fine 
not to exceed $5,000 per violation.3  Fla. Stat. § 112.0441.  In light of this law, 
 
2 Florida filed its motion claiming irreparable injury on November 17, and the state law 
passed on November 18, 2021.  Florida filed no notice to supplement the motion and never advised 
this Court of the law’s passage.  Thus, no argument on the law as enacted was before the Court at 
the time the prior decision was made.   
3 Florida’s law also states that a private employer who terminates an employee for not 
complying with a vaccine mandate is subject to fines of up to $50,000 per violation (for an 
employer with 100 or more employees).  See Fla. Stat. § 381.00317.  This law appears to provide 
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CASE NO. 3:21cv2722-MCR-HTC 
sovereign interests are implicated, most notably a concern that the new state law 
creates a conflict that forces state-run agency and facility heads to make a decision 
by December 6 as to which law to follow, which could give rise to an irreparable 
sovereign injury.  Therefore, the Court will hold a hearing on the matter in advance 
of December 6, out of an abundance of caution.4   
 
Accordingly, Florida’s Emergency Motion for Injunction Pending Appeal, 
ECF No. 9, is DENIED.  However, the Court sua sponte reinstates Florida’s request 
for a preliminary injunction, as stated in its Complaint, ECF No. 1, and its previously 
filed motion, ECF No. 2, and requires a written response from the Defendants by 
 
for a wider range of exemptions than allowed under federal law (i.e., requiring exemptions for 
medical reasons, religious reasons, COVID-19 immunity, agreeing to undergo periodic testing, 
and use of employer-provided personal protective equipment).   
4 To clarify, the Court’s prior order denying a TRO and a preliminary injunction was 
intended to address only the TRO and should have indicated it was deferring on the preliminary 
injunction.  That said, the Court did in fact consider and reject those arguments that were clearly 
presented to the Court previously, concluding that the affidavits presented did not justify entry of 
a TRO.  The Court is not revisiting the TRO decision and is not granting an injunction pending 
appeal, which may be sought in the Eleventh Circuit, as Florida indicates it will do.  However, for 
all practical purposes, the Court is holding an evidentiary hearing on the request for a preliminary 
injunction prior to December 6 in order to adequately address the new law and to hear all of 
Florida’s arguments and evidence pertaining to a preliminary injunction.  This should not be 
construed as an indication that the decision will necessarily change, but because Florida argues 
irreparable harm could occur before the Court can address the merits of the case if widespread 
resignations interrupt the state-run facilities’ ability to provide necessary services or if federal 
funding is withdrawn before then, the Court will hear all evidence.  See McMahon v. City of 
Panama City Beach, 180 F. Supp. 3d 1076, 1110 (N.D. Fla. 2016) (noting the question of 
irreparable harm for purposes of a preliminary injunction is whether it is “likely” to occur “before 
a decision on the merits can be rendered” (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 
7, 22) (2008)).  The Court anticipates reaching a decision before the December 6 deadline. 
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CASE NO. 3:21cv2722-MCR-HTC 
noon (C.T.) on Tuesday, November 30, 2021.  An evidentiary hearing will be held 
and oral argument heard on Wednesday, December 1, 2021, at 9:00 a.m. (C.T.) in 
the Fifth Floor Courtroom of the Federal Courthouse located at One North Palafox, 
Pensacola, Florida.5  The time is subject to change if the parties confer and file a 
notice of their agreed start time, with an indication of the anticipated length of time 
needed for the hearing, by 5:00 p.m. (C.T.) on Monday, November 29, 2021. 
 
DONE AND ORDERED this 27th day of November 2021. 
 
 
 
 
 
 
M. Casey Rodgers                                       
 
 
 
 
 
M. CASEY RODGERS 
 
 
 
 
UNITED STATES DISTRICT JUDGE 
 
5 Counsel must appear in person.  To enter the courtroom, all persons must provide proof 
of COVID-19 vaccination or a negative COVID-19 test dated within the previous three days, 
consistent with the undersigned’s courtroom policy, which is provided on the Court’s public 
website.  See http://www.flnd.uscourts.gov/news/coronavirus-covid-19-updates (COVID Policy 
MCR Courtroom 5). 
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