Joint Motion to Vacate Further Briefing and Hearing — Florida v. HHS

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     Case 3:21-cv-02722-MCR-HTC Document 14 Filed 11/28/21 Page 1 of 8




                    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.
_________________________________/

JOINT MOTION TO VACATE FURTHER BRIEFING AND HEARING ON
                PRELIMINARY INJUNCTION

      For the following reasons, the parties respectfully jointly request that the

Court vacate the further briefing and hearing the Court yesterday ordered on

Florida’s motion for a preliminary injunction. Florida intends to pursue

expeditiously its previously filed appeal from the Court’s denial of a preliminary

injunction. The parties agree that further district court proceedings on the same

motion are unwarranted under these circumstances.

      1. On November 17, 2021, Florida moved for a temporary restraining order

or preliminary injunction against the CMS vaccination rule, which requires that

certain unvaccinated staff of certain health care facilities, as a condition of the

facilities’ participation in the Medicare and Medicaid programs, either receive their

first COVID vaccine dose, or request from their employer an exemption from doing
     Case 3:21-cv-02722-MCR-HTC Document 14 Filed 11/28/21 Page 2 of 8




so, no later than December 6, 2021. On November 20, 2021, this Court entered an

order stating: “Florida’s motion for a Temporary Restraining Order or Preliminary

Injunction, ECF 2, is DENIED.” ECF 6 at 10. The Court added: “Defendants are

directed to respond to the Complaint in due course.” Id. at 10-11.

      On November 23, 2021, Florida noticed an appeal from that order, and the

same day moved in this Court for an injunction pending appeal as a prelude to asking

the Eleventh Circuit for the same relief. See Fed. R. App. P. 8(a)(1)(C). In its motion,

Florida indicated that it intended to seek an injunction pending appeal from the

Eleventh Circuit no later than Monday, November 29, 2021.

      On November 27, 2021, this Court denied Florida’s request for an injunction

pending appeal. In the same order, however, the Court “sua sponte reinstate[d]

Florida’s request for a preliminary injunction,” requested that the government file a

written response to Florida’s motion by November 30 at noon, and scheduled an in-

person hearing on Florida’s motion to begin at 9 am on December 1. ECF 13 at 5-6.

      2. The parties respectfully move to suspend further proceedings in this Court

on Florida’s motion for a preliminary injunction pending the Eleventh Circuit’s

disposition of Florida’s appeal. Because the Court’s earlier order was denominated

as a denial of the motion for a preliminary injunction, and because Florida has taken

an appeal from that order, there is at a minimum substantial doubt as to whether this

Court has been divested of jurisdiction to reconsider the order. See Coastal Corp. v.


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     Case 3:21-cv-02722-MCR-HTC Document 14 Filed 11/28/21 Page 3 of 8




Texas E. Corp., 869 F.2d 817, 820 (5th Cir. 1989); Int’l Ass’n of Machinists &

Aerospace Workers, AFL-CIO v. E. Air Lines, Inc., 847 F.2d 1014, 1018 (2d Cir.

1988). In any event, Florida intends to move for an injunction pending appeal with

the Eleventh Circuit on Monday, November 29, 2021, to give the Court of Appeals

an opportunity to rule in advance of the December 6 vaccination deadline set by the

rule. Accordingly, the parties jointly request that this Court suspend further

proceedings regarding the preliminary injunction motion pending the disposition of

Florida’s appeal.

                                  CONCLUSION

      For the foregoing reasons, the parties respectfully request the Court to vacate

the hearing and further briefing that it ordered on Florida’s motion for a preliminary

injunction.




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Case 3:21-cv-02722-MCR-HTC Document 14 Filed 11/28/21 Page 4 of 8




                    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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                    Brian M. Boynton
                    ACTING ASSISTANT ATTORNEY GENERAL

                    Michelle R. Bennett
                    ASSISTANT BRANCH DIRECTOR
                    FEDERAL PROGRAMS BRANCH

                    /s/ Joel McElvain
                    Joel McElvain
                    Bar No. 448431(DC)
                    SENIOR TRIAL COUNSEL

                    Julie Straus Harris
                    Bar No. 1021298(DC)
                    SENIOR TRIAL COUNSEL

                    Jonathan D. Kossak
                    Bar No. 991478(DC)
                    TRIAL ATTORNEY

                    Michael L. Drezner
                    Bar No. 83836(VA)
                    TRIAL ATTORNEY

                    U.S. Department of Justice
                    Civil Division, Federal Programs Branch
                    1100 L Street NW
                    Washington, DC 20530
                    Tel: (202) 616-8298
                    Fax: (202) 616-8470
                    Email: Joel.L.McElvain@usdoj.gov

                    Counsel for Defendants




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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 join in this motion.




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               CERTIFICATE OF WORD COUNT

Consistent with Local Rule 7.1(F), this motion contains 510 words.




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                          CERTIFICATE OF SERVICE

      I hereby certify that on this 28th 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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