21A240 021 Dec 30 2021 Main Document 20211230141226947 Cms Stay Opp Final (U.S.)

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Nos. 21A240, 21A241 
 
 
 
 
In the Supreme Court of the United States 
 
XAVIER BECERRA, U.S. Department of Health and Human Services et al., 
Applicants, 
V. 
STATES OF LOUISIANA, MONTANA, ARIZONA, ALABAMA, GEORGIA, IDAHO, 
INDIANA, KENTUCKY, MISSISSIPPI, OHIO, OKLAHOMA, SOUTH CAROLINA, UTAH, 
AND WEST VIRGINIA ET AL., 
Respondents. 
 
RESPONSE TO APPLICATION FOR A STAY PENDING APPEAL 
 
To the Honorable Samuel A. Alito, Associate Justice and Circuit 
Justice for the Fifth Circuit 
 
 
 
Jeff Landry 
Louisiana Attorney 
General 
Elizabeth B. Murrill 
   Solicitor General 
J. Scott St. John 
   Deputy Solicitor General 
Morgan Brungard 
Josiah Kollmeyer 
   Assistant Solicitors 
General 
LOUISIANA DEPARTMENT OF 
JUSTICE 
1885 N. Third Street 
Baton Rouge, LA 70804 
(225) 326-6766 
 
 
Mark Brnovich 
Arizona Attorney General 
Joseph A. Kanefield 
Chief Deputy & Chief of 
Staff 
Brunn (“Beau”) W. Roysden 
III 
Solicitor General 
Drew C. Ensign 
Deputy Solicitor General 
Counsel of Record 
Wilson C. Freeman 
Senior Litigation Counsel 
OFFICE OF THE ARIZONA 
ATTORNEY GENERAL 
2005 N. Central Ave. 
Phoenix, AZ 85004 
(602) 542-5025 
Austin Knudsen  
Montana Attorney 
General  
Kristin Hansen 
Lieutenant General 
David M.S. Dewhirst  
Solicitor General  
Kathleen L. Smithgall  
Assistant Solicitor 
General  
MONTANA DEPARTMENT 
OF JUSTICE 
215 North Sanders Street   
Helena, MT 59601  
(406) 444-2026 
 
Counsel for Respondent States  
(additional counsel listed in signature block) 

 
i 
TABLE OF CONTENTS 
Page 
TABLE OF AUTHORITIES ......................................................................................... iii 
INTRODUCTION .......................................................................................................... 1 
STATEMENT ................................................................................................................. 3 
1.  The Executive Branch’s Expanding Views of Executive Power. ...................... 3 
2.  The CMS Mandate. ............................................................................................ 5 
3.  CMS’s Statutory Authority. ............................................................................... 7 
4.  Harm to Healthcare Workers, Patients, and States. ....................................... 8 
5.  The Injunction Against the Mandate. ............................................................... 9 
6.  The Fifth Circuit’s Affirmance. ....................................................................... 11 
7.  Parallel Litigation. ........................................................................................... 11 
8.  The Applicants’ Emergency Stay Application. ............................................... 12 
ARGUMENT ................................................................................................................ 13 
I. 
Applicants Forfeited Challenges To The District Court’s Holdings 
That The Mandate Independently Violates Three Specific Statutory 
Mandates And Prohibitions. ............................................................................ 13 
A.  Section 1395 Prohibits The CMS Mandate Because It Seeks To 
“Control … the Selection [Or] Tenure” Of Healthcare Workers. ............. 14 
B.  HHS Violated §1302(b) In Promulgating the CMS Mandate. ................. 16 
C.  HHS Violated §1395z’s Consultation Requirement By Not 
Consulting With States Before Promulgating The Mandate. .................. 18 
II.  Applicants Are Unlikely To Prevail on the Merits of the Issues They 
Properly Raise. ................................................................................................. 22 
A.  No Statute Authorizes the Mandate. ........................................................ 22 
B.  The Mandate Is Unconstitutional. ............................................................ 26 

 
 
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C.  The Mandate Is Arbitrary and Capricious. .............................................. 28 
D.  HHS Violated the APA’s Notice-and-Comment Requirements 
Without Good Cause. ................................................................................ 31 
III. Applicants Seek Ultimate Relief Here But Cannot Establish Their 
Entitlement to It. ............................................................................................. 35 
IV.  The Balance of Equities Disfavors a Stay. ...................................................... 37 
V.  Applicants Overstate the Certworthiness of Their Claims. ........................... 38 
CONCLUSION ............................................................................................................. 40 
 

 
 
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TABLE OF AUTHORITIES 
Page(s) 
CASES 
Alabama Ass’n of Realtors v. HHS,  
141 S. Ct. 2485 (2021) ....................................................................... 22, 23, 25, 26, 38 
American Fed’n of Gov’t Emp. v. Block,  
655 F.2d 1153 (D.C. Cir. 1981) ................................................................................. 34 
Arbuckle Mountain Ranch of Tex., Inc. v. Chesapeake Energy Corp.,  
810 F.3d 335 (5th Cir. 2016 ...................................................................................... 19 
Ass’n of Cmty. Cancer Centers v. Azar,  
509 F. Supp. 3d 482 (D. Md. 2020) ........................................................................... 32 
Azar v. Allina Health Servs.,  
139 S. Ct. 1804 (2019) ......................................................................................... 23, 34 
Bloate v. United States,  
559 U.S. 196 (2010) ................................................................................................... 21 
Boos v. Barry,  
485 U.S. 312 (1988) ................................................................................................... 28 
Brown v. Gardner,  
513 U.S. 115 (1994) ................................................................................................... 18 
BST Holdings, L.L.C. v. OSHA,  
2021 WL 5279381 (5th Cir. 2021) ............................................................................ 32 
Carter v. Toyota Tsusho Am., Inc.,  
529 Fed. Appx. 601 (6th Cir.2013) ........................................................................... 19 
City of Emeryville v. Robinson,  
621 F.3d 1251 (9th Cir. 2010) ................................................................................... 19 
Cousins v. Wigoda,  
409 U.S. 1201 (1972) ................................................................................................... 2 
Danville Christian Acad., Inc. v. Beshear,  
141 S. Ct. 527 (2020) ................................................................................................. 31 
Demirayak v. City of New York,  
746 F. App'x 49 (2d Cir. 2018) .................................................................................. 35 

 
 
iv
Democratic Exec. Comm. v. Nat’l Repub. Sen. Comm.,  
950 F.3d 790 (11th Cir. 2020) ................................................................................... 39 
Dunn v. Retail Clerks Int’l Ass’n, AFL-CIO, Loc. 1529,  
299 F.2d 873 (6th Cir. 1962) ..................................................................................... 35 
FDA v. Brown & Williamson Tobacco Corp.,  
529 U.S. 120 (2000) ................................................................................................... 22 
Florida v. Becerra,  
2021 WL 2514138 (M.D. Fla. June 18, 2021) .......................................................... 32 
Florida v. HHS,  
19 F.4th 1271 (11th Cir. 2021) ................................................................................. 12 
Florida v. HHS,  
2021 WL 5768796 (11th Cir. 2021) .......................................................................... 32 
Florida v. HHS,  
No. 3:21-CV-2722, 2021 WL 5416122 (N.D. Fla. Nov. 20, 2021) ............................ 11 
Gee v. Planned Parenthood of Gulf Coast, Inc.,  
139 S. Ct. 408 (2019) ................................................................................................. 23 
Good Samaritan Hosp. v. Shalala,  
508 U.S. 402 (1993) ................................................................................................... 28 
Gundy v. United States,  
139 S. Ct. 2116 (2019) ............................................................................................... 27 
Healthbridge Mgmt., LLC v. Nat’l Lab. Rels. Bd.,  
672 F. App’x 1 (D.C. Cir. 2016) ................................................................................. 19 
Hollingsworth v. Perry,  
558 U.S. 183 (2010) ................................................................................................... 13 
In re MCP No. 165, Occupational Safety & Health Admin., Interim Final 
Rule: COVID-19 Vaccination & Testing,  
__ F.4th __, 2021 WL 5914024 (6th Cir. 2021) .......................................................... 3 
John Wyeth & Bro. v. CIGNA Int’l Corp.,  
119 F.3d 1070 (3d Cir. 1997) .................................................................................... 19 
King v. Burwell,  
576 U.S. 473 (2015) ............................................................................................. 22, 24 
 

 
 
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Mack Trucks, Inc. v. EPA,  
682 F.3d 87 (D.C. Cir. 2012) ..................................................................................... 31 
Missouri v. Biden,  
No. 21-3725 (8th Cir. Dec. 13, 2021) ........................................................................ 12 
N.Y. Progress & Prot. PAC v. Walsh,  
733 F.3d 483 (2d Cir. 2013) ...................................................................................... 37 
Nat’l Fed’n of Indep. Bus. v. Sebelius,  
567 U.S. 519 (2012) ............................................................................................. 26, 27 
National Ass’n of Mfrs. v. DOD,  
138 S. Ct. 617 (2018) ................................................................................................. 16 
National Socialist Party of Am. v. Vill. of Skokie,  
434 U.S. 1327 (1977) ................................................................................................. 35 
Nken v. Holder,  
556 U.S. 418 (2009) ................................................................................................... 15 
NRDC v. Abraham,  
355 F.3d 179 (2d Cir. 2004) ...................................................................................... 33 
NRDC v. NHTSA,  
894 F.3d 95 (2d Cir. 2018) ........................................................................................ 33 
Ohio Citizens for Responsible Energy, Inc. v. Nuclear Regul. Comm’n,  
479 U.S. 1312 (1986) ..................................................................................... 14, 16, 31 
Pennhurst State Sch. & Hosp. v. Halderman,  
451 U.S. 1 (1981) ....................................................................................................... 27 
Pennsylvania Med. Soc. v. Marconis,  
942 F.2d 842 (3d Cir. 1991) ...................................................................................... 15 
Regeneron Pharms., Inc. v. HHS,  
510 F. Supp. 3d 29 (S.D.N.Y. 2020).......................................................................... 32 
Republic of Argentina v. NML Cap., Ltd.,  
573 U.S. 134 (2014) ................................................................................................... 15 
Russello v. United States,  
464 U.S. 16 (1983) ..................................................................................................... 18 
See Missouri v. Biden,  
No. 4:21-CV-01329, 2021 WL 5564501 (E.D. Mo. Nov. 29, 2021) ........................... 11 

 
 
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Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Engineers,  
531 U.S. 159 (2001) ....................................................................................... 22, 23, 24 
Sorenson Commc’ns Inc. v. FCC,  
755 F.3d 702 (D.C. Cir. 2014) ................................................................................... 31 
South Bay United Pentecostal Church v. Newsom,  
141 S. Ct. 716, 209 L. Ed. 2d 22 (2021) .................................................................... 24 
Sprietsma v. Mercury Marine,  
537 U.S. 51 (2002) ..................................................................................................... 17 
Sugar Cane Growers Co-op. of Fla. v. Veneman,  
289 F.3d 89 (D.C. Cir. 2002) ..................................................................................... 35 
Tanner Motor Livery, Ltd. v. Avis, Inc.,  
316 F.2d 804 (9th Cir. 1963) ..................................................................................... 35 
Texas v. Becerra,  
No. 2:21-CV-229, 2021 WL 5964687 (N.D. Tex. Dec. 15, 2021) .............................. 11 
Texas v. Biden,  
10 F.4th 538 (5th Cir. 2021) ..................................................................................... 30 
Touby v. United States,  
500 U.S. 160 (1991) ................................................................................................... 27 
U.S. Forest Serv. v. Cowpasture River Pres. Ass’n,  
140 S. Ct. 1837 (2020) ......................................................................................... 22, 24 
U.S. Steel Corp. v. EPA,  
595 F.2d 207 (5th Cir. 1979) ..................................................................................... 34 
United States Steel Corp. v. EPA,  
595 F.2d 207 (5th Cir.1979) ...................................................................................... 33 
United States v. Hardman,  
297 F.3d 1116 (10th Cir. 2002) ................................................................................. 19 
United States v. Johnson,  
632 F.3d 912 (5th Cir. 2011) ..................................................................................... 31 
United States v. Shabani,  
513 U.S. 10 (1994) ..................................................................................................... 18 
United States v. Sineneng-Smith,  
140 S. Ct. 1575 (2020) ............................................................................................... 15 

 
 
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University of Texas v. Camenisch,  
451 U.S. 390 (1981) ................................................................................................... 36 
Unspam Techs., Inc. v. Chernuk,  
716 F.3d 322 (4th Cir. 2013) ..................................................................................... 19 
Utility Air Regulatory Group v. EPA,  
573 U.S. 302 (2014) ................................................................................................... 22 
WarnerVision Ent. Inc. v. Empire of Carolina, Inc.,  
101 F.3d 259 (2d Cir. 1996) ...................................................................................... 35 
Wayman v. Southard,  
23 U.S. 1 (1825) ......................................................................................................... 27 
Whole Woman’s Health v. Jackson,  
141 S. Ct. 2494 (2021) ............................................................................................... 39 
Zucht v. King,  
260 U.S. 174 (1922) ................................................................................................... 23 
STATUTES 
42 U.S.C. § 1302(a) ........................................................................................................ 8 
42 U.S.C. § 1302(b) ...................................................................................................... 17 
42 U.S.C. § 1302(b)(1) .................................................................................................. 18 
42 U.S.C. § 1302(b)(2) .................................................................................................. 18 
42 U.S.C. § 1395 ..................................................................................................... 15, 16 
42 U.S.C. § 1395i-3 ........................................................................................................ 4 
42 U.S.C. § 1396r ........................................................................................................... 4 
42 U.S.C. §1302(b) ....................................................................................................... 29 
Pub. L. No. 117-2, Title IX, § 9402 (Mar. 11, 2021), 135 Stat. 127 .............................. 4 
REGULATIONS 
42 C.F.R. § 51a.5 .......................................................................................................... 25 
42 C.F.R. §416.51(c) ....................................................................................................... 5 
42 C.F.R. §416.51(c)(1) ................................................................................................... 5 

 
 
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42 C.F.R. §416.51(c)(2)(i) ............................................................................................... 5 
42 C.F.R. §416.51(c)(3) ................................................................................................... 6 
42 C.F.R. §416.51(c)(3)(i) ............................................................................................... 5 
42 C.F.R. §416.51(c)(3)(ii) .............................................................................................. 6 
42 C.F.R. §416.51(c)(3)(iv)-(v) ........................................................................................ 7 
42 C.F.R. §416.51(c)(3)(vi)-(vii) ..................................................................................... 6 
42 C.F.R. §416.51(c)(3)(viii) ........................................................................................... 6 
86 Fed. Reg. 61555 (Nov. 5, 2021) .................. 5, 6, 7, 8, 9, 17, 19, 20, 23, 24, 27, 34, 38 
OTHER AUTHORITIES 
AARP Nursing Home COVID-19 Dashboard, AARP Public Policy Institute 
(Dec. 16, 2021), bit.ly/30lrvgs ..................................................................................... 9 
AARP, AARP Nursing Home COVID-19 Dashboard (updated Dec. 16, 2021), 
https://bit.ly/3HhAWyy ............................................................................................. 28 
Administration, Black’s Law Dictionary (10th ed. 2014) ........................................... 25 
Chris Isidore & Virginia Langmaid, 72% of unvaccinated workers vow to quit 
if ordered to get vaccinated, CNN.com (Oct. 28, 2021), 
https://cnn.it/3HdgDlw ............................................................................................. 28 
Cong. Research Serv., Mandatory Vaccinations: Precedent and Current Laws 
9 (RS21414; May 21, 2014), https://bit.ly/3sEnEaf ................................................... 3 
Guidance for the Interim Final Rule—Medicare and Medicaid Programs; 
Omnibus COVID-19 Health Care Staff Vaccination; 
https://go.cms.gov/3pxIOoE ........................................................................................ 6 
Lauran Neergaard & Mike Stobbe, CDC Recommends Pfizer, Moderna 
COVID-19 shots over J&J’s, Assoc. Press (Dec. 16, 2021), 
https://bit.ly/32GzLIN ............................................................................................... 36 
Liz Hamel, et al., KFF COVID-19 Vaccine Monitor: Oct, 2021, Kaiser Family 
Foundation (Oct. 28, 2021), https://bit.ly/3wEiJWN ............................................... 28 
Necessary, Black’s Law Dictionary (10th ed. 2014) .................................................... 25 
 

 
 
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OIRA, EO 12866 Meetings Search Results, available at 
https://bit.ly/3FJBwUo ............................................................................................. 20 
Press Briefing by Press Secretary Jen Psaki, April 6, 2021, 
https://bit.ly/3rBJVoL ................................................................................................. 3 
Press Briefing by Press Secretary Jen Psaki, July 23, 2021, 
https://bit.ly/3pWnJVr ................................................................................................ 3 
Remarks by President Biden at COVID-19 Response Team’s Regular Call 
With the National Governors Association (Dec. 27, 2021); 
https://bit.ly/34c27M9 ................................................................................................. 5 
Rural COVID patients in ICUs at higher risk of dying than urban 
counterparts, according to WVU researcher, WVU Today (Nov. 11, 2021), 
https://bit.ly/3HnFB1Q ............................................................................................. 17 
The White House, Remarks by President Biden on Fighting the COVID-19 
Pandemic (Sept. 9, 2021), https://bit.ly/3oI0pKr ....................................................... 4 
  
 
 
 

 
1 
INTRODUCTION 
The Federal Government seeks a stay to permanently change the status quo, 
not to preserve it. If the Court grants this relief, millions of healthcare providers and 
workers will immediately fall into noncompliance with the new CMS Vaccine 
Mandate and be subject to termination. Across the country, healthcare workers are 
already far too scarce. This new Mandate worsens the problem, sidelining providers, 
professionals, and support staff who have led the fight against COVID-19. And, as is 
often the case, rural communities—already straining from threadbare resources—
will bear the brunt of these consequences. Virtually every equitable consideration 
counsels against staying the injunctions entered below.  
So do the merits. The Mandate is plainly unlawful. Most fundamentally, it 
exceeds CMS’s statutory authority, which does not encompass such a sweeping 
mandate—especially in light of multiple clear-statement doctrines that apply here. 
CMS moreover eschewed notice and comment without good cause, even though it had 
sufficient time to take comments in the nearly two months from announcing the 
Mandate to promulgating it. And the Mandate is arbitrary and capricious for several 
reasons. Constitutionally, the Mandate also likely violates the Tenth Amendment 
and the Non-Delegation Doctrine. And it violates at least three statutory provisions 
within the Social Security Act, as the district court properly held. But the Applicants 
failed to address two of those grounds in their stay application, and addressed the 
third only in a footnote—omissions that shut down their likelihood of obtaining both 
a grant of certiorari (because their questions presented aren’t dispositive) and a 

 
 
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reversal from this Court (because they do not answer all holdings supporting the 
injunction). 
In sum, CMS, through the Vaccine Mandate, assumes sweeping new federal 
power over individuals even though Congress has never claimed such expansive 
authority for itself and even though the Executive Branch expressly disclaimed it 
only five months ago. To get there, the agency ignored and undermined the Social 
Security Act’s driving purpose, repeatedly violated the APA, and rearranged the 
Constitution’s structures of federalism and separation of powers. 
HHS’s application should also be denied because it effectively seeks ultimate 
relief, without either acknowledging that fact or attempting to satisfy the 
heightened—indeed extraordinary—burden that applies. See, e.g., Cousins v. Wigoda, 
409 U.S. 1201, 1206 (1972) (Rehnquist, J., in chambers). If the injunctions are lifted, 
healthcare workers are put to the choice immediately, with little or no time to comply 
before losing their jobs. And States, who were not consulted, face immediate 
destabilization of their Medicaid provider bases and must assume the task of 
enforcing the very Mandate that causes this disastrous result. 
Lifting the injunctions puts patients across the country at risk of losing access 
to the healthcare they need now. Denying the stay merely prevents those harms from 
materializing at the cost of the President’s vaccination agenda—an agenda 
formalized in ex post facto agency pronouncements the lower courts have already 
signaled are illegal.  
The Court should deny the application for a stay. 

 
 
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STATEMENT 
1. The Executive Branch’s Expanding Views of Executive Power. 
Just months ago, the Biden Administration disclaimed any legal authority over 
vaccine mandates, calling them “not the role of the federal government”—let alone of 
the Executive Branch acting alone. Press Briefing by Press Secretary Jen Psaki, July 
23, 2021, https://bit.ly/3pWnJVr. Instead, the Administration thought it should 
ensure that “Americans’ privacy and rights [were] protected” and that the vaccine 
rollout was “not used against people unfairly.” See Press Briefing by Press Secretary 
Jen Psaki, April 6, 2021, https://bit.ly/3rBJVoL.  
That position accords with the longstanding view that federal law does not 
authorize mandatory vaccination programs among the general population. See, e.g., 
Cong. Research Serv., Mandatory Vaccinations: Precedent and Current Laws 9 
(RS21414; May 21, 2014), https://bit.ly/3sEnEaf (“No mandatory vaccination 
programs are specifically authorized, nor do there appear to be any regulations 
regarding the implementation of a mandatory vaccination program at the federal 
level during a public health emergency.”); cf. In re MCP No. 165, Occupational Safety 
& Health Admin., Interim Final Rule: COVID-19 Vaccination & Testing, __ F.4th __, 
2021 WL 5914024, at *18-20 (6th Cir. 2021) (Bush, J., dissenting) (“For while 
Congress has long sought to facilitate safe and effective vaccines, it has never invoked 
the commerce power to mandate their administration upon the public at large.”) 
(setting forth history of federal vaccination programs). And when Congress recently 
amended various CMS statutes in response to the COVID-19 pandemic, none of its 

 
 
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amendments authorized mandating vaccines. See, e.g., Pub. L. No. 117-2, Title IX, 
§9402 (Mar. 11, 2021), 135 Stat. 127; 42 U.S.C. §§1395i-3, 1396r.  
In early September, however, the Administration suddenly changed its 
collective mind after the President announced his plan to “use my power as President” 
to mandate vaccinations on “100 million Americans.” The White House, Remarks by 
President Biden on Fighting the COVID-19 Pandemic (Sept. 9, 2021), 
https://bit.ly/3oI0pKr. He announced a series of federal vaccine mandates designed to 
compel most of the adult population of the United States to get a COVID-19 vaccine. 
Id. The Administration changed course not because Congress had authorized it to—
in fact, Congress has done nothing to support vaccine mandates in the past year—
but because the President’s “patience” was “wearing thin” with those “who haven’t 
gotten vaccinated.” Id.  
This case concerns the part of the President’s mandatory vaccination agenda 
that targets healthcare workers and suppliers. In his early September remarks, the 
President announced that one of his vaccine mandates would apply to “a total of 17 
million healthcare workers.” Sept. 9, 2021 Remarks, supra. Specifically, his Executive 
Branch would “be requiring vaccinations” on all “those who work in hospitals, home 
healthcare facilities, or other medical facilities.” Id. Notwithstanding his past 
remarks, he then declared, “I have that federal authority.” Id.  
Yet remarkably, on December 27 the President declared that “there is no 
federal solution. This gets solved at a state level.”1 
                                                 
1  See Remarks by President Biden at COVID-19 Response Team’s Regular Call With 

 
 
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2. The CMS Mandate. 
More than eight weeks after the President’s September 9 remarks, the Centers 
for Medicare & Medicaid Services (CMS) published an interim final rule mandating 
vaccinations for healthcare workers. Medicare and Medicaid Programs; Omnibus 
COVID-19 Heath Care Staff Vaccination, 86 Fed. Reg. 61555 (Nov. 5, 2021). The 
Mandate governs 21 categories of Medicare or Medicaid providers and suppliers. See 
id. at 61556. It applies the same substantive standards to each. See id. at 61570, 
61616-61627. As CMS explained, “we are issuing a common set of provisions for each 
applicable provider and supplier.” Id. at 61570.  
The Mandate requires that every covered entity “develop and implement 
policies and procedures to ensure that all staff are fully vaccinated for COVID–19.” 
See, e.g., 42 C.F.R. §416.51(c). The vaccination requirement applies to anyone “who 
provides any care, treatment, or other services for the [entity] and/or its patients”—
including employees, contractors, trainees, students, and volunteers—even if they 
have no contact with patients. Id. §416.51(c)(1). To be exempt, a healthcare worker 
has to “exclusively provide” telehealth or support services “outside of the [entity’s] 
setting” in permanent isolation. Id. §416.51(c)(2)(i). 
The Mandate also originally required each covered entity to ensure that, by 
December 6, 2021, all healthcare workers submit to at least one vaccine dose. Any 
worker who did not submit cannot provide “any care, treatment, or other services for 
the [entity] and/or its patients.” Id. §416.51(c)(3)(i); 86 Fed. Reg. at 61555. By January 
                                                 
the National Governors Association (Dec. 27, 2021); https://bit.ly/34c27M9. 

 
 
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4, 2022, all such healthcare workers would have to be “fully vaccinated.” 42 C.F.R. 
§416.51(c)(3)(ii); 86 Fed. Reg. at 61555. A covered entity is allowed to provide an 
exemption for those granted temporary delays when mandated by federal law or 
counseled to do so by the CDC’s own guidance. 42 C.F.R. §416.51(c)(3).  
But on December 28, 2021, CMS announced delayed enforcement of the 
Mandate in states in which it is not currently enjoined. See Guidance for the Interim 
Final Rule—Medicare and Medicaid Programs; Omnibus COVID-19 Health Care 
Staff Vaccination; https://go.cms.gov/3pxIOoE. For those 25 states, CMS establishes 
“enforcement action thresholds” of 80%, 90%, and 100% compliance after 30, 60, and 
90 days, respectively. See id. (https://go.cms.gov/3eBm7K0). It then provides that 
after “90 days … following issuance of this memorandum [March 28, 2022], facilities 
failing to maintain compliance with the 100% standard may be subject to enforcement 
action.” Id. Potential penalties include “civil monetary penalties, denial of payment, 
[and] termination.” Id. 
The Mandate also imposes heavy-handed surveillance obligations. It requires 
covered entities to “track[] and securely document[] information provided by those 
staff who have requested, and for whom the [entity] has granted, an exemption” or 
delay. 42 C.F.R. §416.51(c)(3)(vi)-(vii). It requires them to ensure that all 
documentation “support[ing] staff requests for medical exemptions from vaccination, 
has been signed and dated by a licensed practitioner.” Id. §416.51(c)(3)(viii). And it 
requires that the covered entities implement a “process for tracking and securely 
documenting the COVID–19 vaccination status of all staff,” including booster-shot 

 
 
7
status. Id. §416.51(c)(3)(iv)-(v). And finally, because States implement Medicaid 
programs, the burden of surveying and terminating non-compliant providers falls 
upon the States. See D. Ct. Docs. 2-3, 2-14.  
According to CMS, the Mandate captures 10.4 million healthcare workers—2.4 
million of whom CMS contends are unvaccinated—and CMS anticipates the Mandate 
would apply to another 2.66 million new hires annually. 86 Fed. Reg. at 61608. The 
Mandate, by CMS’s own calculation, would impose over $1 billion in compliance costs. 
Id. at 61609. Any entity that fails to fire its non-compliant workers faces penalties up 
to and including “termination of the Medicare/Medicaid provider agreement.” 86 Fed. 
Reg. at 61574. 
The Mandate provides no exception or alternative for healthcare workers with 
natural immunity. It likewise provides no exception or alternative for those who 
submit to routine testing. And though CMS issued the Mandate eight weeks after it 
was announced, and over six months after vaccines became widely available, it 
promulgated the Mandate without notice or comment.  
CMS acknowledges that its Mandate is unprecedented. See 86 Fed. Reg. at 
61567 (“We have not previously required any vaccinations.”) (emphasis added); id. at 
61568 (“We acknowledge that we have not previously imposed such requirements.”). 
3. CMS’s Statutory Authority. 
According to Applicants, the Executive Branch’s newly discovered “authority 
to adopt the [Mandate] flows directly from the unambiguous text of the statute.” Stay 
App. 20. The “statute” that Applicants refer to is presumably 42 U.S.C. §1302(a) 

 
 
8
because, while CMS invoked a hodgepodge of authorities in issuing the Mandate, the 
only statute that it claimed could support the Mandate’s application in full was 
§1302(a). See 86 Fed. Reg. at 61567; see also Stay App. 20.  
Section 1302(a) delegates to the Secretary of Health and Human Services mere 
administrative responsibility in maintaining Medicare and Medicaid:  
The … Secretary of Health and Human Services … shall make 
and publish such rules and regulations, not inconsistent with this 
chapter, as may be necessary to the efficient administration of the 
functions with which [he] is charged under this chapter. 
42 U.S.C. §1302(a).  
Beyond §1302(a), CMS had originally listed other statutory provisions as 
authority for some aspects of the Mandate’s application. For example, CMS applied 
the Mandate to “Ambulatory Surgery Centers,” in part based on 42 U.S.C. 
§1395k(a)(2)(F)(i). See 86 Fed. Reg. at 61567. In their stay application before this 
Court, however, Applicants no longer mention many of those other statutory 
provisions. 
4. Harm to Healthcare Workers, Patients, and States. 
If the Mandate goes into effect, it will—and has already begun to—disrupt the 
lives and livelihoods of millions of Americans. CMS estimates it will force 2.4 million 
currently unvaccinated healthcare workers to either forfeit informed consent and 
bodily autonomy or their jobs. See 86 Fed. Reg. at 61607. It unabashedly admits that 
the Mandate is designed to exploit people’s “fear of job loss” to coerce them into 
compliance. Id.  

 
 
9
But many American healthcare workers will give up their jobs rather than 
violate their consciences or submit to a medical procedure they deem potentially 
harmful or unnecessary. CMS gives only a cursory nod to this reality: “there may be 
disruptions in cases where substantial numbers of health care staff refuse vaccination 
and are not granted exemptions and are terminated,” which would lead to 
“consequences for employers, employees, and patients.” 86 Fed. Reg. at 61608.  
Those consequences will be more than painful—especially for the Americans 
that Medicare and Medicaid are designed to serve. All parties agree that currently 
“endemic staff shortages for all categories of employees at almost all kinds of health 
care providers and suppliers” exist. Id. at 61607. Indeed, in many of Plaintiff States, 
over 40% of nursing homes already faces staffing shortages. See AARP Nursing Home 
COVID-19 Dashboard, AARP Public Policy Institute (Dec. 16, 2021), bit.ly/30lrvgs. 
At the same time, in most Plaintiff States, over 30% of healthcare workers remain 
unvaccinated. Id. The Mandate is therefore likely to exacerbate these pre-existing 
labor shortages in the healthcare industry, which CMS does not dispute will cause 
sick and dying Americans to lose access to medical care. 
5. The Injunction Against the Mandate. 
Plaintiff States sued to enjoin the Mandate and have it vacated and declared 
unlawful before it could wreak its devastating toll. See D. Ct. Doc. 1. They administer 
Medicaid programs—Medicaid provider agreements are contracts with the States—
and they operate regulated entities themselves. They will incur both enforcement and 
compliance costs. Additionally, they enforce laws that are purportedly preempted by 

 
 
10
the Mandate. And they stand for their citizens who will lose access to or control over 
their medical care, or their jobs, as a result of the Mandate. To avoid those harms, 
Plaintiff States sought—and the district court granted—a preliminary injunction 
against the Mandate. See App.7a-8a. 
The district court held that the Plaintiffs were likely to succeed on the merits 
of their claims on eight independent grounds and were not likely to succeed on the 
merits on two grounds due to a lack of evidence submitted with the preliminary-
injunction motion. In particular, the district court held that Applicants:  
 Exceeded their statutory authority in enacting the Mandate. App.27a-30a.  
 Improperly bypassed notice and comment. App.22a-27a. 
 Violated 42 U.S.C. §1395, which forbids Applicants from exercising 
“supervision or control over” the “selection, tenure, or compensation of any 
officer or employee of” healthcare providers. App.30a-31a. 
 Did not comply with 42 U.S.C. §§1395z or 1302(b), which impose statutory 
procedural requirements that the Applicants flatly ignored. App.30a-31a. 
 Violated the APA, as the Mandate was arbitrary and capricious for many 
reasons. App.31a-36a.  
 Violated the Constitution by intruding into an area of traditional State police 
power and, if authorized by statute, exercising unconstitutionally delegated 
federal legislative power. App. 36a-39a.  
The district court found that Plaintiff States would suffer at least four 
independent irreparable injuries if the Mandate went into effect. Specifically, 

 
 
11
Plaintiff States’ laws would be preempted, they would incur the increased cost of 
enforcing and complying with the Mandate, their procedural rights to their concrete 
interests would be denied, and their citizens’ interests would be burdened. App.39a-
40a. Carefully balancing those interests and the federal government’s, it then held 
that the threatened harm outweighed any harm to the Applicants and that the 
injunction would advance the public interest. App.40a-41a. 
6. The Fifth Circuit’s Affirmance. 
A Fifth Circuit panel of Judges Costa, Graves, and Southwick unanimously 
refused to stay the district court’s preliminary injunction in all respects other than 
its geographic scope. App.6a. The panel held that the Applicants had not 
demonstrated a strong showing of likely success on the merits in defending the 
Mandate because it implicates a major question of the sort that would require clear 
congressional authorization. App.2a-3a. Echoing the district court’s conclusion, the 
panel also held that because “the Secretary’s vaccine rule has not gone into effect,” it 
would not stay the injunction because “preserving the status quo ‘is an important’ 
equitable consideration in a stay decision.” App.4a. It then narrowed the injunction’s 
scope to the fourteen Plaintiff States. App.6a. 
7. Parallel Litigation. 
Meanwhile, two other district courts enjoined the Mandate—on similar 
bases—and one declined.2 An Eighth Circuit panel upheld one of those injunctions, 
                                                 
2  See Missouri v. Biden, No. 4:21-CV-01329, 2021 WL 5564501 (E.D. Mo. Nov. 29, 
2021); Texas v. Becerra, No. 2:21-CV-229, 2021 WL 5964687 (N.D. Tex. Dec. 15, 2021); 
Florida v. HHS, No. 3:21-CV-2722, 2021 WL 5416122 (N.D. Fla. Nov. 20, 2021). 

 
 
12
the other remains unappealed, and a split Eleventh Circuit panel upheld the denial 
of a preliminary injunction over Judge Lagoa’s dissent.3  
8. The Applicants’ Emergency Stay Application. 
After the Fifth Circuit denied a stay, Applicants filed this application for an 
emergency stay of the district court’s injunction so that they could enforce the 
Mandate immediately. They contend that this Court would likely reverse the district 
court on the merits because the “unambiguous text of the statute” authorizes the 
Mandate as “necessary to the efficient administration” of the Secretary of Health and 
Human Service’s operation of Medicaid and Medicare. App. 20. In support of their 
reading, Applicants invoke legislative history. Id. at 23. They reason that the Fifth 
Circuit “invoked an expansive and unsound conception of what [it] called the ‘major 
questions’ doctrine that finds no support in this Court’s precedents.” Id. at 19. And, 
remarkably, they claim they are not regulating “a significant portion of the American 
economy.” Id. at 29.  
Applicants also contend that the Mandate is not an exercise of 
unconstitutionally delegated federal legislative power or an intrusion into the States’ 
traditional police power because healthcare employees “choose to work” at entities 
that accept Medicaid or Medicare funding. Id. at 31. They also claim that there is “no 
merit” to the district court’s holding that the Mandate was arbitrary and capricious, 
id. at 32, and contend that they could bypass notice and comment (contrary to 
                                                 
3  See Missouri v. Biden, No. 21-3725 (8th Cir. Dec. 13, 2021); Florida v. HHS, 19 
F.4th 1271 (11th Cir. 2021).  

 
 
13
Congress’s express command) because they “acted in response to the rapidly evolving 
conditions of the pandemic,” id. at 36-37. Finally, they reason that the public interest 
favors allowing them to enforce the Mandate immediately because of “the real-world 
impact” of enforcing it. Id. at 39. They do not, however, address the district court’s 
independent holdings that the Mandate illegally violated 42 U.S.C. §§1395 and 
1302(b), and they relegate to a footnote any discussion of its holding that the Mandate 
violated 42 U.S.C. §1395z. 
ARGUMENT 
The Court will stay a district court’s order still pending before a court of 
appeals only in the rare circumstance when (1) four Justices are likely to vote to grant 
certiorari, (2) a majority of the Court is likely to reverse the district court’s judgment, 
and (3) equitable factors—irreparable harm from granting or denying the stay, and 
(in close cases) the balance of harms to the applicant and respondent—favor granting 
a stay. Hollingsworth v. Perry, 558 U.S. 183, 190 (2010). Whatever might be said 
about the certworthiness of some issues here, see infra §V, Applicants fail to carry 
their burden of showing error in the district court’s judgment and that the balance of 
equities favors a stay. The Court should deny the application. 
I. 
Applicants Forfeited Challenges To The District Court’s Holdings 
That The Mandate Independently Violates Three Specific Statutory 
Mandates And Prohibitions. 
The Mandate is unlawful not just because HHS lacks general authority to 
promulgate it, see §II infra, but also because it violates three specific statutory 
requirements or prohibitions in 42 U.S.C. §§1395, 1302(b), and 1395z. The district 

 
 
14
court held that HHS “did not comply with any of the[se] provisions, [and thus] the 
Plaintiff States are likely to succeed on the merits.” App.30a-31a. 
When Applicants sought a stay from the Fifth Circuit, they challenged only 
two of those holdings (ignoring §1302(b)). And in this Court, they challenge only one, 
§1395z—and then only in a footnote (at 37 n.6). Applicants’ failure to address those 
district court holdings in any meaningful way effectively eliminates their chances of 
obtaining a grant of certiorari because the Court’s decision on the few issues 
presented will not be dispositive. It also precludes their chances of securing a majority 
vote to reverse; they give no basis for this Court to conclude that every district court 
holding supporting the injunction is wrong.  
Even setting aside those failures, their arguments would fail on the merits, 
making Applicants doubly unlikely to obtain a reversal of the injunction. 
A. 
Section 1395 Prohibits The CMS Mandate Because It Seeks To 
“Control … the Selection [Or] Tenure” Of Healthcare Workers. 
1. 
The district court held that Plaintiff States were likely to succeed in 
showing that the Mandate violates 42 U.S.C. §1395, which prohibits the federal 
government from exercising “any supervision or control” over the “selection, tenure, 
or compensation” of any person providing health services or the “administration or 
operation” of any health care institution. App.30a-31a. By failing to challenge this 
holding in its application, Applicants concede it for present purposes. See Ohio 
Citizens for Responsible Energy, Inc. v. Nuclear Regul. Comm’n, 479 U.S. 1312, 1312 
(1986) (Scalia, J., in chambers) (“I will not consider counsel to have asked for such 

 
 
15
extraordinary relief where, as here, he has neither specifically requested it nor 
addressed the peculiar requirements for its issuance.”). 
More generally, this Court “follow[s] the principle of party presentation.” 
United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020). The Court “rel[ies] on 
the parties to frame the issues for decision[.]’” Id. (citation omitted). Federal courts 
“‘do not, or should not, sally forth each day looking for wrongs to right. They wait for 
cases to come to them, and when cases arise, courts normally decide only questions 
presented by the parties.’” Id. (cleaned up) (citation omitted). That’s true in every 
case, but especially so when seeking a stay. For the party seeking that equitable relief 
“bears the burden of showing that the circumstances justify an exercise of that 
discretion.” Nken v. Holder, 556 U.S. 418, 433–34 (2009). By failing to address the 
district court’s holding on §1395, Applicants necessarily have failed to carry their 
burden. Id. Nor would belated presentation in their reply brief suffice. See, e.g., 
Republic of Argentina v. NML Cap., Ltd., 573 U.S. 134, 140 n.2 (2014). 
2.  
Section 1395 plays a critical role in preserving the federal-state balance. 
This provision reflects the longstanding recognition that “the practice of medicine is, 
in general, a subject of state regulation.” Pennsylvania Med. Soc. v. Marconis, 942 
F.2d 842, 846 n.4 (3d Cir. 1991). Titled “Prohibition against any federal interference,” 
§1395 provides, in broad language, that “[n]othing in this subchapter shall be 
construed to authorize any Federal officer or employee to exercise any supervision or 
control” over numerous matters, including the “selection, tenure, or compensation” of 
health care employees. 42 U.S.C. §1395 (emphasis added). 

 
 
16
By (1) mandating that millions of health care employees either undergo 
vaccination or face termination, and (2) precluding the future hiring of unvaccinated 
healthcare workers—with an estimated 2.66 million hires each year—the Mandate 
plainly constitutes attempted “supervision or control” over “selection [and] tenure” of 
health care employees. In fact, that appears to be the Mandate’s entire point. 
Though Applicants ignore this issue in this Court, they attempted a cursory 
defense in the Fifth Circuit, arguing that the Mandate is nothing more than a 
“condition on federal funding for health care facilities.” But that argument neither 
cited nor grappled with Congress’s specific limitation on federal power over “selection 
[or] tenure” of employees. Id. No matter; Applicants’ argument would render §1395 
superfluous. Medicare is a spending program. Nearly everything that HHS can do 
under the subchapter could be characterized as a mere “condition on federal 
funding”—yet Congress nonetheless deemed it important to expressly limit federal 
authority in §1395. “As this Court has noted time and time again, the Court is obliged 
to give effect, if possible, to every word Congress used.” See National Ass’n of Mfrs. v. 
DOD, 138 S. Ct. 617, 632 (2018) (cleaned up). But under HHS’s interpretation, §1395 
does nothing beyond occupy space in the U.S. Code. 
B. 
HHS Violated §1302(b) In Promulgating the CMS Mandate. 
1. 
By failing to challenge in their application the district court’s holding 
that they violated 42 U.S.C. §1302(b)’s regulatory-impact-statement requirement, 
Applicants also waived this issue. See Ohio Citizens, 479 U.S. at 1312 (Scalia, J., in 
chambers). Applicants likewise did not raise this issue in their Fifth Circuit stay 

 
 
17
briefs, which fail even to cite §1302(b). See, e.g., Sprietsma v. Mercury Marine, 537 
U.S. 51, 56 n.4 (2002) (failure to raise argument below waives it). 
2. 
Had Applicants preserved a challenge to the district court’s §1302(b) 
holding, their argument would again fail on the merits. Section 1302(b) requires the 
Secretary to prepare a regulatory impact analysis when publishing a rule that “may 
have a significant impact on the operations of a substantial number of small rural 
hospitals[.]” The Mandate itself identifies significant impacts on rural hospitals, 
stating that “early indications are that rural hospitals are having greater problems 
with employee vaccination refusals than urban hospitals, and [HHS] welcome[s] 
comments on ways to ameliorate this problem.” 86 Fed. Reg. at 61613 (emphasis 
added). Plaintiff States submitted substantial uncontroverted evidence showing the 
Mandate “may have a significant impact on the operations of a substantial number 
of small rural hospitals.” §1302(b)(1). See D. Ct. Docs. 2-2, 2-7, 2-12; see also Rural 
COVID patients in ICUs at higher risk of dying than urban counterparts, according 
to WVU researcher, WVU Today (Nov. 11, 2021), https://bit.ly/3HnFB1Q. 
3. 
Applicants addressed this issue only in the district court. There, they 
did not dispute that §1302(b)’s “significant impact” threshold was met. D. Ct. Doc. 21 
at 24. Instead, they made a novel statutory argument: that §1302(b) did not apply 
because “[t]he Secretary did not publish a notice of proposed rulemaking, and this is 
not the final version of a rule with respect to which an initial regulatory impact 
analysis was required.” Id. 

 
 
18
That argument fails because §1302(b)(1) requires a final regulatory impact 
statement whenever “an initial regulatory impact analysis is required by paragraph 
(1),” §1302(b)(2)—that is, for any rule “that may have a significant impact on the 
operations of a substantial number of small rural hospitals,” §1302(b)(1). Subsection 
(b)(2)’s requirement is thus triggered by what a rule does, not how it is promulgated. 
In essence, HHS’s arguments attempt to engraft the APA’s “good cause” 
exception onto §1302(b). But Congress included no such exception in §1302(b), and 
that omission is presumptively intentional. See United States v. Shabani, 513 U.S. 
10, 14 (1994) (“When a statutory term is absent in one statute, but is explicit in 
analogous statutes, Congress’ silence speaks volumes.” (cleaned up)); cf. Brown v. 
Gardner, 513 U.S. 115, 118 (1994) (“‘[W]here Congress includes particular language 
in one section of a statute but omits it in another section of the same Act, it is 
generally presumed that Congress acts intentionally and purposely in the disparate 
inclusion or exclusion.’” (quoting Russello v. United States, 464 U.S. 16, 23 (1983)). 
Nor do Applicants’ novel district court arguments comport with Congress’s 
statutory design. Nothing in §1302(b) suggests that Congress would be less concerned 
about impacts to rural hospitals when those hospitals had been denied the 
opportunity to comment on a proposed rule. If anything, the need for a regulatory 
impact statement is heightened by lack of opportunity to comment. 
C. 
HHS Violated §1395z’s Consultation Requirement By Not 
Consulting With States Before Promulgating The Mandate. 
1. 
The only specific statutory requirement Applicants address in this Court 
is §1395z’s requirement of consulting with States—and even then only in passing by 

 
 
19
footnote (at 37 n.6). The courts of appeals generally agree that raising an argument 
only in a footnote constitutes a waiver.4 That rationale would support a holding by 
this Court that Applicants waived any challenge to the district court’s conclusion that 
HHS “did not comply with” §1395z. App.31a. 
2. 
Even if not waived, Applicants’ footnote-only argument fails on the 
merits. For rules like the CMS Mandate, §1395z requires “the Secretary” to “consult 
with appropriate State agencies and recognized national listing or accrediting 
bodies,” and permits him to “consult with appropriate local agencies.” Applicants do 
not deny that HHS refused to engage in such consultation before promulgating the 
Mandate, and they identify no evidence that it has attempted to do so since then. 
Applicants’ only argument—yet another novel statutory claim—is that HHS’s 
complete failure to consult with the States to date is lawful because §1395z “does not 
require that consultation occur in advance of a rulemaking.” Stay App. 37 n.6 (citing 
86 Fed. Reg. at 61567). Notwithstanding a clear statutory command to consult States, 
HHS posits that “[g]iven the urgent need to issue this rule, however, we do not believe 
that there exists an entity with which it would be appropriate to engage in these 
                                                 
4  See, e.g., Healthbridge Mgmt., LLC v. Nat’l Lab. Rels. Bd., 672 F. App’x 1 (D.C. Cir. 
2016) (“Petitioners’ arguments … are forfeited because they were only briefly 
mentioned in a footnote.”); Carter v. Toyota Tsusho Am., Inc., 529 Fed. Appx. 601, 612 
n.2 (6th Cir.2013) (“Generally, an argument raised in a footnote without further 
development is deemed waived.”); Arbuckle Mountain Ranch of Tex., Inc. v. 
Chesapeake Energy Corp., 810 F.3d 335, 339 n.4 (5th Cir. 2016) (same); Unspam 
Techs., Inc. v. Chernuk, 716 F.3d 322, 330 n* (4th Cir. 2013) (same); John Wyeth & 
Bro. v. CIGNA Int’l Corp., 119 F.3d 1070, 1076 n.6 (3d Cir. 1997) (same);City of 
Emeryville v. Robinson, 621 F.3d 1251, 1262 n.10 (9th Cir. 2010) (same); United 
States v. Hardman, 297 F.3d 1116, 1131 (10th Cir. 2002) (same). 

 
 
20
consultations in advance of issuing this IFC,” and that it did not “understand the 
statute to impose a temporal requirement to do so in advance of the issuance of this 
rule.” 86 Fed. Reg. at 61567. That argument fails for at least four reasons. 
First, HHS’s reasoning seemingly attempts (again) to graft a non-existent 
good-cause exception into §1395z’s consultation requirement by claiming an “urgent 
need to issue this rule.” Id. In other words, HHS attempts to rewrite the statute 
according to its own vision rather than what Congress enacted. But unlike the APA, 
§1395z contains no good-cause exception. And because CMS rules are generally 
subject to the APA, and because 42 U.S.C. §1302(a) provides general rulemaking 
authority under the APA’s auspices, this omission is presumptively intentional. See 
supra at 18. HHS’s attempt to invoke a good-cause exception that does not exist 
through rewriting statutes is not likely to succeed on appeal. 
Second, even if an atextual good-cause exception could be read into §1302(b), 
Applicants could not satisfy it here. HHS had ample time between the September 9 
announcement and the November 5 promulgation to engage in consultation. Indeed, 
OSHA managed to hold some 140 meetings during the same time window.5 
Applicants never actually argue that those eight full weeks were insufficient 
time to consult with the States if HHS were so inclined. To the contrary, it appears 
HHS arbitrarily decided States weren’t worthy of consulting. See 86 Fed. Reg. at 
61567 (“[W]e do not believe that there exists an entity with which it would be 
                                                 
5  See OIRA, EO 12866 Meetings Search Results, available at https://bit.ly/3FJBwUo. 

 
 
21
appropriate to engage in these consultations in advance of issuing this IFC.”). 
Congress mandated otherwise. 
Third, Applicants’ contention (at 37 n.6) that §1395z “does not require that 
consultation occur in advance of a rulemaking” is unavailing. By mandating 
consultation with the States, the statute requires a meaningful consultation rather 
than an ex-post rubber stamp. The suggestion that a post-promulgation consultation 
with States can satisfy that requirement is at best an empty formalism. Instead, the 
statute requires consultation with States before rules issue—just as the APA 
generally requires that notice and opportunity to comment before final rules issue. 
HHS’s suggestion that it can simply relegate consultation to a perfunctory 
afterthought—a process occurring after federal regulators have picked, publicly 
committed to, and started enforcing a particular course—improperly renders the 
consultation requirement meaningless. See, e.g., Bloate v. United States, 559 U.S. 
196, 209 (2010) (“A statute ought, upon the whole, to be so construed that, if it can be 
prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.”) 
(cleaned up). In any event, HHS’s reliance on multiple novel revisions of the law are 
more reasons the injunction is appropriate now while it continues to litigate those 
claims below. 
Fourth, even if HHS were correct that the consultation could occur after the 
IFR issues, HHS has not submitted any evidence that it has attempted to engage in 
such consultation with the States in the eight weeks since the CMS Mandate issued 
on November 5. That omission is particularly meaningful here as HHS has the 

 
 
22
burden of proof in seeking a stay, and its failure to provide any supporting evidence 
undermines its claim that its putative post hoc efforts will be sufficient. 
II. 
Applicants Are Unlikely To Prevail on the Merits of the Issues They 
Properly Raise. 
A. 
No Statute Authorizes the Mandate.   
Under this Court’s precedent, agencies must show clear statements of 
congressional authority before enacting regulations with particularly important or 
sensitive implications. After all, “Congress does not casually authorize” major 
regulations. Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Engineers, 531 
U.S. 159, 172 (2001). So, for instance, an agency may not address issues of “deep 
economic and political significance” without showing that Congress has “expressly” 
given it the power to do so. King v. Burwell, 576 U.S. 473, 486 (2015).6 Nor may an 
agency “significantly alter the balance between federal and state power” without 
showing that Congress has given it the power to do so through “exceedingly clear 
language.” U.S. Forest Serv. v. Cowpasture River Pres. Ass’n, 140 S. Ct. 1837, 1849-
50 (2020). And an agency may not “invoke[] the outer limits of Congress’ power” 
without showing a “clear indication that Congress intended that result.” Solid Waste, 
                                                 
6  Applicants’ contention (at 19) that the States’ arguments based on this principle 
“find[] no support in this Court’s precedents” is puzzling. See, e.g., Utility Air 
Regulatory Group v. EPA, 573 U.S. 302, 324 (2014) (“We expect Congress to speak 
clearly if it wishes to assign to an agency decisions of vast ‘economic and political 
significance.’”); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000) 
(“Congress could not have intended to delegate a decision of such economic and 
political significance to an agency in so cryptic a fashion.”); Alabama Realtors, 141 S. 
Ct. at 2489 (“We expect Congress to speak clearly when authorizing an agency to 
exercise powers of vast economic and political significance.”) (quotation marks 
omitted). 

 
 
23
531 U.S. at 172. This Court recently reiterated these clear-statement requirements 
in emphatic terms. See Alabama Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2489 
(2021). 
The Mandate triggers all three clear-statement requirements. First, if the 
Mandate is not an issue of “deep economic and political significance,” nothing is. The 
Mandate is controversial, heavy-handed, and unprecedented. 86 Fed. Reg. at 61567. 
It forces 2.4 million Americans to either submit to injections against their wills or 
lose their livelihoods. Id. at 61607. It commands States to enforce its terms upon 
threat of losing billions in Medicaid funding or valued and irreplaceable providers in 
an already-stressed employment market. 86 Fed. Reg. at 61574. It imposes over $1 
billion in compliance costs. Id. at 61609.7 And it will cause lost or reduced access to 
healthcare for the tens of millions of Americans who depend on Medicaid or 
Medicare—programs that “touch[] the lives of nearly all Americans.” Azar v. Allina 
Health Servs., 139 S. Ct. 1804, 1808 (2019). Second, the Mandate “significantly 
alter[s] the balance between federal and state power.” Vaccine-mandate policy falls 
within the “police power of a state.” Zucht v. King, 260 U.S. 174, 176 (1922). More 
broadly, the “Constitution principally entrusts the safety and the health of the people 
                                                 
7  The estimated compliance costs do not appear to take into account State 
enforcement costs and exposure to litigation for terminations. States, who administer 
the Medicaid program, are required by federal law to provide an administrative and 
judicial process for challenging terminations and deficiency reports. States have been 
sued over such terminations by providers and beneficiaries under the “free choice of 
provider” statute. See, e.g., Gee v. Planned Parenthood of Gulf Coast, Inc., 139 S. Ct. 
408 (2019) (Thomas, J., dissenting from denial of certiorari) (recognizing that 
Medicaid patients in some circuits can sue states under §1983 over termination of a 
provider based on some circuits’ interpretation of 42 U.S.C. §1396(a)(23)). 

 
 
24
to the politically accountable officials of the States.” South Bay United Pentecostal 
Church v. Newsom, 141 S. Ct. 716, 717, 209 L. Ed. 2d 22 (2021) (Roberts, C.J., 
concurring). And third, the Mandate raises close constitutional questions and tests 
the “outer limits of Congress’ power”—power that Congress, itself, has never 
acknowledged. Supra at 3-4. 
Because the Mandate triggers those three rules, Applicants may not impose it 
unless Congress authorized them to do so “expressly,” in “exceedingly clear 
language,” and with the “clear indication that Congress intended that result.” 
Burwell, 576 U.S. at 486; Cowpasture River, 140 S. Ct. at 1849-50, Solid Waste, 531 
U.S. at 172. But Congress did not authorize them to impose the Mandate at all, let 
alone in express and clear terms.  
Applicants rely upon only 42 U.S.C. §1302(a) to support the Mandate in full. 
But that housekeeping statute cannot bear the Mandate’s freight. 
To be sure, Applicants’ initial publication listed other statutory provisions as 
authorizing some aspects of the Mandate. See 86 Fed. Reg. at 61567. Yet in their stay 
application before this Court, Applicants no longer mention many of those other 
statutes. Should Applicants try to reinvoke them, not one addresses—let alone 
authorizes—mandating employee vaccinations. See D. Ct. Doc. 1 at 11-17.  
Applicants are left, then, with §1302(a), which merely delegates to the 
Secretary of HHS administrative responsibility for maintaining Medicare and 
Medicaid:  
The … Secretary of Health and Human Services … shall make 
and publish such rules and regulations, not inconsistent with this 

 
 
25
chapter, as may be necessary to the efficient administration of the 
functions with which [he] is charged under this chapter. 
§1302(a). This authorization to make rules “necessary” to the “efficient 
administration” of his functions related to Medicaid and Medicare does not fairly 
suggest the sort of sweeping power that the Applicants assert here. Indeed, it is not 
even health-specific. Rather, the Act’s structure demonstrates that §1302(a) confers 
the authority to make practical rules that help keep Medicaid and Medicare operating 
smoothly and economically, such as rules that update billing procedures or clarify 
discretionary grant-allocation criteria. See, e.g., 42 C.F.R. §51a.5. Reading these 
grants of practical administrative authorities together with §1302(a) confirms that 
the terms “necessary” and “administration” do not grant the sweeping powers 
Applicants claim. See Alabama Realtors, 141 S. Ct. at 2488. 
The plain meaning of the terms “administration” and “necessary” also preclude 
Applicants’ expansive interpretation. The word “administration” refers to “the 
practical management and direction of the executive department and its agencies.” 
Administration, Black’s Law Dictionary (10th ed. 2014). The word “necessary” refers 
to that which “is needed for some purpose or reason” or which “must exist or happen 
and cannot be avoided.” Necessary, Black’s Law Dictionary (10th ed. 2014). And this 
Court has just recently rejected a federal assertion that the term “necessary” confers 
limitless power. Alabama Realtors, 141 S. Ct. at 2489 (“[T]he Government has 
identified no limit in [the statute] beyond the requirement that the [agency] deem a 
measure ‘necessary’”). If Congress had wanted to authorize the Secretary to forcibly 
vaccinate or fire millions of healthcare workers, it would have needed to replace this 

 
 
26
confining and mundane language with a precise and resounding grant of authority. 
It did not.  
On Applicants’ reading of §1302(a), there are no meaningful limits to the 
Secretary’s power. Applicants contend that the Mandate is necessary because it 
“protects” and “ensure[s]” the “health and safety of patients.” Stay App. 21, 25. But if 
that reading sufficed, the Secretary could also mandate—to take just one example—
that all healthcare workers track and report their sleep schedules to their employers 
to ensure that they are alert enough to provide safe and competent care, with covered 
entities then firing those workers who rely on coffee to make up for late nights or 
early mornings. HHS could similarly require healthcare workers to satisfy maximum 
BMI or minimum exercise requirements, or mandate consumption of healthy foods 
like broccoli in the name of ensuring that can provide maximally effective and 
efficient care. Cf. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 557-58 (2012).  
Hypothetical directives that control health care workers’ lives are endless but 
would all fall within the Secretary’s view of his authority. Section 1302(a), however, 
“is a wafer-thin reed on which to rest such sweeping power.” Alabama Realtors, 141 
S. Ct. at 2489. 
B. 
The Mandate Is Unconstitutional.  
If Congress authorized the Mandate, it is unconstitutional under both the 
Spending Clause and the Non-Delegation Doctrine. Under the Spending Clause, 
Congress’s power to legislate “rests on whether the State voluntarily and knowingly 
accepts the terms of the ‘contract,’” which means that the federal government may 
not “impose a condition on the grant of federal money” unless it “do[es] so 

 
 
27
unambiguously.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). 
Even if the federal government imposes a condition unambiguously, it may not use 
its power under the Spending Clause to “indirectly coerce[] a State” to adopt its policy. 
Sebelius, 567 U.S. at 577-78. Whether a condition on funding is impermissibly 
coercive turns on the consequences of opting out. Id. at 580-81. Here, when Plaintiff 
States accepted Medicaid funding, they had no notice of the Mandate. Quite the 
opposite: such matters have long been quintessential police powers reserved to 
States. And even if they had notice, the condition was impermissibly coercive because 
the consequence of opting out would be the loss of all Medicare and Medicaid funds. 
See 86 Fed. Reg. at 61574.  
And under the Non-Delegation Doctrine, Congress may not delegate the 
federal legislative power to the Executive Branch. Touby v. United States, 500 U.S. 
160, 165 (1991). While “power [may be] given to those who are to act under such 
general provisions to fill up the details” concerning certain legislation, “important 
subjects … must be entirely regulated by the legislature itself.” Wayman v. Southard, 
23 U.S. 1, 43 (1825); see also Gundy v. United States, 139 S. Ct. 2116, 2136 (2019) 
(Gorsuch, J., dissenting). Here, if §1302(a) or any other provision authorizes the 
Secretary to legislate the vaccination schedules of 10.4 million healthcare workers, it 
is an unconstitutional delegation of legislative authority.  
At a minimum, those constitutional concerns warrant construing §1302(a) to 
avoid them. “[I]t is well established that statutes should be construed to avoid 
constitutional questions if such a construction is fairly possible.” Boos v. Barry, 485 

 
 
28
U.S. 312, 333 (1988). Here, it is not only “possible,” but natural, to read §1302(a) as 
authorizing practical rules that help keep Medicaid and Medicare operating smoothly 
and economically, not sweeping and constitutionally questionable employee 
vaccination mandates.  
Thus, the Secretary’s arguments fail to meet the threshold requirement of 
showing a majority of this Court likely will vote to reverse. 
C. 
The Mandate Is Arbitrary and Capricious.   
The Mandate is arbitrary and capricious for several independently sufficient 
reasons. Most notably, as the district court found, the Mandate is at war with the 
central objective of the Social Security Act—patient wellbeing and access to care. See 
Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 404 (1993). There is no dispute that 
the Mandate will adversely affect the healthcare labor market. The most Applicants 
can say (at 33) is that this impact will be “relatively small” and only “partially offset 
by countervailing effects.” But their failure to consult with States renders this flawed 
assumption nothing more than self-serving. And in any event, overwhelming 
evidence shows that the Mandate will exacerbate already critical staff shortages.8 
Applicants’ admission that the Mandate will adversely affect patient wellbeing—even 
                                                 
8  There is already a critical shortage of healthcare workers. Montana, for example, 
already has a 39% nurse and aide shortage in nursing homes. AARP, AARP Nursing 
Home COVID-19 Dashboard (updated Dec. 16, 2021), https://bit.ly/3HhAWyy. 
Studies show that vaccine mandates will exacerbate those shortages. See Liz Hamel, 
et al., KFF COVID-19 Vaccine Monitor: Oct, 2021, Kaiser Family Foundation (Oct. 
28, 2021), https://bit.ly/3wEiJWN; Chris Isidore & Virginia Langmaid, 72% of 
unvaccinated workers vow to quit if ordered to get vaccinated, CNN.com (Oct. 28, 
2021), https://cnn.it/3HdgDlw. 

 
 
29
a little bit—is dispositive. The Social Security Act’s goal of patient wellbeing and 
access to care must trump the Biden Administration’s non-statutory vaccination 
goals. Applicants admit that the Mandate will reduce the number of healthcare 
workers and cannot dispute that fewer healthcare workers means greater harm to 
patients.  
The isolated examples HHS pulls out of context do not rebut the overwhelming 
evidence that the Mandate will result in staff shortages and facility closures. HHS, 
which did not bother to take comments, see infra, ignored the Mandate’s disparate 
impact on rural hospitals—a particularly egregious omission given the Act’s special 
protections for rural healthcare populations. 42 U.S.C. §1302(b). Applicants’ focus on 
large, primarily urban, hospital systems ignores a vital and statutorily-mandated 
aspect of the problem. Worse yet, Applicants try to elude the district court’s factual 
findings demonstrating the Mandate’s devastating impact on rural facilities and 
systems by simply ignoring them.9 App.32a. But the APA denies Applicants the right 
                                                 
9  Had HHS taken comments, Respondents would have presented the evidence about 
rural facilities that HHS failed to consider—and upon which the district court found 
(at App.32a) that patient wellbeing at rural facilities will be devastated: 
This is backed up by a number of declarations of various individuals that 
verify healthcare worker shortages, a significant number of healthcare 
workers that remain unvaccinated, and the harm that will be caused to 
these facilities in the event that even a few of the unvaccinated 
healthcare workers quit or are fired as a result of the CMS Mandate. 
Some of the declarations also verify the huge percentage of money paid 
to these facilities through the Medicare and Medicaid Programs, 
showing these facilities would have to shut down or severely cut back on 
healthcare services if funding is cut off by the Government Defendants 
to these facilities. The Plaintiff States also provided a declaration which 
shows increased enforcement costs that would result if required to 
survey and enforce the CMS Mandate. 

 
 
30
to be willfully blind to reality. Simply put, patient wellbeing is disserved by 
preventing the hiring and retention of qualified healthcare workers—a fact CMS 
would have known had it consulted the States and taken comments.  
The district court also correctly concluded that HHS failed to consider 
alternatives to a mandate. Applicants contend (at 35) that “substantial evidence 
supported” the Secretary’s determination that testing and natural immunity were 
not viable alternatives, but they fail to identify such evidence. That is because it does 
not exist. HHS both failed to identify its own evidence and contradicted evidence from 
the States demonstrating that testing requirements prevent employee reductions and 
preserve patient wellbeing. See App.33a (“The Declaration of Tracy Gruber declares 
that since July 2021, employees at the Utah State Hospital and Utah State 
Development Center have been required to be vaccinated or take a weekly COVID-
19 test. That alternative has caused no apparent harm to patients or staff.”). HHS’s 
conclusory dismissal of obvious alternatives was not supported by any evidence 
whatsoever. Cf. Texas v. Biden, 10 F.4th 538, 556 (5th Cir. 2021) (“‘Stating that a 
factor was considered ... is not a substitute for considering it.’”). 
Applicants also fail to address several other independent bases supporting the 
district court’s judgment. The court held that “CMS failed to adequately explain its 
departure from its prior position of not requiring mandatory vaccines,” App. 34a-35a; 
that the agency’s rationale was likely pretextual, id. at 35a; that the agency ignored 
the States’ reliance interests, id. at 35a-36a; and that the Mandate’s scope is 
arbitrary, id. at 36a. Applicants fail to address any of those independently sufficient 

 
 
31
reasons why the Mandate is arbitrary and capricious. Particularly given the burden 
they bear in this emergency posture, that failure is dispositive. Cf. Danville Christian 
Acad., Inc. v. Beshear, 141 S. Ct. 527, 528 (2020); Ohio Citizens for Responsible 
Energy, 479 U.S. at 1312 (Scalia, J., in chambers). 
D. 
HHS Violated the APA’s Notice-and-Comment Requirements 
Without Good Cause.   
Applicants do not dispute that HHS failed to employ notice-and-comment 
procedures. Instead, they invoke the APA’s “good cause” exception to notice and 
comment to excuse that failure. This Court owes HHS’s good-cause determination no 
deference because “[t]o accord deference to an agency’s invocation of good cause would 
be to run afoul of congressional intent.” Sorenson Commc’ns Inc. v. FCC, 755 F.3d 
702, 706 (D.C. Cir. 2014). The good cause exception to notice-and-comment should be 
read narrowly so that agencies do not get “an ‘escape clause’ from the requirements 
Congress prescribed” in the APA. United States v. Johnson, 632 F.3d 912, 928 (5th 
Cir. 2011); see also Mack Trucks, Inc. v. EPA, 682 F.3d 87, 93 (D.C. Cir. 2012) (good-
cause exception is not an “escape clause[]” to be “arbitrarily utilized at the agency’s 
whim”). And “the good cause exception should not be used to circumvent the notice 
and comment requirements whenever an agency finds it inconvenient to follow them.” 
Johnson, 632 F.3d at 929 (quotation marks omitted). 
The district court faithfully applied those principles, yet Applicants dispute (at 
36) the district court’s conclusion that HHS’s delay in issuing the Mandate 
undermines HHS’s reliance on the exception. But delay usually precludes a good-
cause finding not only because it undermines the agency’s conclusion that the rule is 

 
 
32
needed immediately, but also because an agency cannot avoid notice and comment 
through a crisis of its own creation. Applicants ignore this critical second rationale. 
Applicants’ good-cause arguments focus (at 35-36) on the health risks from 
COVID-19. But after almost two years, COVID-19 is a persistent feature of life and 
cannot itself constitute good cause; similarly, COVID-19 vaccinations have been 
approved under emergency authorizations for nearly a year. See, e.g., Florida v. HHS, 
19 F.4th at 1306 (Lagoa, J., dissenting) (“To allow COVID-19 to constitute good cause 
now would be to effectively repeal notice and comment requirements for the duration 
of the pandemic.”). That is why courts have consistently rejected agency attempts to 
rely on COVID-19 to ignore notice and comment. See Florida v. Becerra, 2021 WL 
2514138, at *45 (M.D. Fla. June 18, 2021); Regeneron Pharms., Inc. v. HHS, 510 F. 
Supp. 3d 29, 48 (S.D.N.Y. 2020); Ass’n of Cmty. Cancer Centers v. Azar, 509 F. Supp. 
3d 482, 496 (D. Md. 2020). After so much time has passed, to deem the desire for 
universal vaccination against COVID-19 “good cause” for ignoring notice-and-
comment requirements would effectively repeal those requirements indefinitely. See 
also BST Holdings, L.L.C. v. OSHA, 2021 WL 5279381, at *3 & n.10 (5th Cir. 2021) 
(OSHA vaccine mandate’s “stated impetus—a purported ‘emergency’ that the entire 
globe has now endured for nearly two years … is unavailing[.]” (cleaned up)). That is 
particularly true here, where eight weeks passed between the September 9 
announcement and the November 5 promulgation. 
Applicants downplay the legal implication of their own delay by invoking (at 
36) flu season. But this concern about winter and flu season—an annual and thus 

 
 
33
eminently foreseeable occurrence—is a crisis of the agency’s own making, which is 
not sufficient to establish good cause. See, e.g., United States Steel Corp. v. EPA, 595 
F.2d 207, 213-14 & n.15 (5th Cir.1979); see also NRDC v. Abraham, 355 F.3d 179, 205 
(2d Cir. 2004) (“We cannot agree ... that an emergency of [an agency’s] own making 
can constitute good cause.”). HHS waited months to issue this supposedly emergency 
measure. But even if “flu season” might normally constitute good cause, it cannot 
here; “‘[o]therwise, an agency unwilling to provide notice or an opportunity to 
comment could simply wait until the eve of a statutory, judicial, or administrative 
deadline, then raise up the ‘good cause’ banner and promulgate rules without 
following APA procedures.’” NRDC v. NHTSA, 894 F.3d 95, 114-15 (2d Cir. 2018) 
(collecting cases); see also App. 26a (“It took CMS longer to prepare the interim final 
rule without notice than it would have taken to comply with the notice and comment 
requirement.”). In any event, if flu season is such a concern, it raises the question 
why CMS has never, even now, mandated the flu vaccine for health care workers and 
suppliers as a condition of participation in Medicare and Medicaid.  
Delay aside, HHS failed to substantively establish good cause to forgo notice 
and comment. Applicants contend (at 22-24) that good cause excuses notice-and-
comment requirements because a delay would harm the health and safety of patients. 
But CMS’s good-cause analysis did not even consider how the Mandate will harm 
patients by exacerbating healthcare workforce shortages and, as explained, CMS 
elsewhere unreasonably dismissed that concern. And beyond that, the “more 
expansive the regulatory reach of” a rule, “the greater the necessity for public 

 
 
34
comment” to allow those affected to be heard. American Fed’n of Gov’t Emp. v. Block, 
655 F.2d 1153, 1156 (D.C. Cir. 1981). There is no overlooking the Mandate’s 
magnitude—never before has CMS conditioned participation in Medicare and 
Medicaid upon mandatory vaccination of the healthcare industry. 86 Fed. Reg. at 
61,567. And the notice-and-comment process is even more vital in the Medicare and 
Medicaid context because those programs “touch[] the lives of nearly all Americans” 
and are two of the country’s “largest federal program[s].” Azar, 139 S. Ct. at 1808. 
Even “minor changes” to the way those programs function “can impact millions of 
people and billions of dollars in ways that are not always easy for regulators to 
anticipate.” Id. at 1816. The Mandate’s importance only further confirms the need for 
notice and comment.  
Applicants’ attempt (at 37) to establish harmless error—an almost 
unattainable standard in the notice-and-comment context—easily fails. The 
harmless-error doctrine is to be used only “when a mistake of the administrative body 
is one that clearly had no bearing on the procedure used or the substance of decision 
reached.” U.S. Steel Corp. v. EPA, 595 F.2d 207, 215 (5th Cir. 1979) (citation omitted). 
Here, however, HHS’s error altered its procedure for promulgating the Mandate, 
precluding a finding of harmless error. See id. What’s more, in a comment period the 
States would have raised the issues described above for the agency’s consideration. 
The States’ inability to submit comments on the Mandate—which directly regulates 
them and their citizens and threatens billions of dollars in health care funding upon 
which States rely to provide services to the poor, elderly, disabled, and children—is 

 
 
35
thus prejudicial. Sugar Cane Growers Co-op. of Fla. v. Veneman, 289 F.3d 89, 96-97 
(D.C. Cir. 2002) (“Here the government would have us virtually repeal section 553’s 
requirements: if the government could skip those procedures, engage in informal 
consultation, and then be protected from judicial review unless a petitioner could 
show a new argument—not presented informally—section 553 obviously would be 
eviscerated.”). 
III. 
Applicants Seek Ultimate Relief Here But Cannot Establish Their 
Entitlement to It. 
The stay application elides an extraordinary aspect of Applicants’ request: 
granting the requested stay is tantamount to awarding ultimate relief. “[T]he fact 
that the entry of the stay would be tantamount to a decision on the merits in favor of 
the applicants” militates against granting it. National Socialist Party of Am. v. Vill. 
of Skokie, 434 U.S. 1327, 1328 (1977) (Stevens, J., in chambers); accord Cousins, 409 
U.S. at 1206 (Rehnquist, J., in chambers). Similarly, the courts of appeals recognize 
that a “heightened standard applies” for requests for preliminary injunctions that 
“would provide the ultimate relief sought in the underlying action.”10 This Court has 
                                                 
10  Demirayak v. City of New York, 746 F. App'x 49, 51 (2d Cir. 2018) (“A heightened 
standard applies when a movant seeks a preliminary injunction that either alters the 
status quo or would provide the ultimate relief sought in the underlying action.”); 
accord WarnerVision Ent. Inc. v. Empire of Carolina, Inc., 101 F.3d 259, 262 (2d Cir. 
1996) (“As a general rule, therefore, a temporary injunction ‘ought not to be used to 
give final relief before trial.’” (citation omitted)); Tanner Motor Livery, Ltd. v. Avis, 
Inc., 316 F.2d 804, 808–09 (9th Cir. 1963) (“[I]t is not usually proper to grant the 
moving party the full relief to which he might be entitled if successful at the 
conclusion of a trial.”); Dunn v. Retail Clerks Int’l Ass’n, AFL-CIO, Loc. 1529, 299 F.2d 
873, 874 (6th Cir. 1962) (“We ought not to grant temporary relief which would finally 
dispose of the case on its merits.”). 

 
 
36
likewise cautioned that “it is generally inappropriate for a federal court at the 
preliminary-injunction stage to give a final judgment on the merits.” University of 
Texas v. Camenisch, 451 U.S. 390, 395 (1981).  
Those equitable considerations strongly militate against granting a stay here 
because the stay’s effect would be tantamount to awarding ultimate victory to HHS. 
CMS’s most recent guidance makes clear that it expects rapid progress within 30 days 
(up to at least 80% compliance) and 100% compliance with 90 days. Supra at 6-7.  
Because there is no masking alternative to vaccination, if the Court were to 
stay the injunctions after the January 7, 2022 oral argument, virtually all healthcare 
workers subject to the CMS Mandate would have little (or negative) time to become 
fully vaccinated or be fired from their jobs. With the CDC now recommending two-
shot Pfizer or Moderna vaccines over the one-shot Johnson & Johnson regimen, see 
Lauran Neergaard & Mike Stobbe, CDC Recommends Pfizer, Moderna COVID-19 
shots over J&J’s, Assoc. Press (Dec. 16, 2021), https://bit.ly/32GzLIN, healthcare 
workers suddenly subject to the Mandate must get two shots in a truncated time—
long before the Fifth Circuit could resolve Applicants’ appeal from the injunction.  
Or, worse yet, healthcare workers suddenly facing a past-due deadline to be 
fully vaccinated may rush to take the single-shot Johnson & Johnson vaccine—which 
the CDC affirmatively recommends they not take. Id. The Court should not deploy its 
equitable powers to coerce healthcare workers into accepting risks that the Executive 
Branch elsewhere recognizes are material, unwarranted, and affirmatively advised-
against. And vaccination, of course, is irreversible—once individuals accede to HHS’s 

 
 
37
unlawful mandate, they will incur the resulting permanent infringement upon their 
liberties and whatever side effects are in store for them—and cannot be remedied by 
money damages (which are unavailable from HHS anyway).11  
In short, the difference between Applicants winning a stay now and a merits 
judgment later is thus de mininis. Though Applicants’ requested stay would not 
formally moot this case, the Mandate would become an irreversible fait accompli for 
nearly all healthcare workers. Applicants are not seeking a stay pending appeal so 
much as this Court’s blessing in perpetuity. 
IV. 
The Balance of Equities Disfavors a Stay. 
Preventing Applicants from enforcing the unlawful Mandate pending appeal 
of the injunction will result in no cognizable injury—let alone irreparable harm—on 
them. Government officials simply “do[] not have an interest in the enforcement of” 
an unlawful statute or regulation. N.Y. Progress & Prot. PAC v. Walsh, 733 F.3d 483, 
488 (2d Cir. 2013). In contrast, the district court held that Plaintiff States had shown 
a likelihood of “irreparable injury” in their sovereign, quasi-sovereign, and 
proprietary capacities without an injunction. App.39a-40a. Applicants do not 
meaningfully challenge those findings. 
Instead, Applicants urge principally that “delaying the rule would cause 
serious, tangible harm to public health,” Stay App. 37-38, contending that “hundreds 
and potentially thousands of patients may die at hospitals, nursing homes, and other 
                                                 
11  The CDC’s changing guidance about which vaccines to receive has a material 
impact on immunization and consent, decisions already being made under duress.  

 
 
38
facilities participating in Medicare and Medicaid as the result of COVID-19 infections 
transmitted to them by staff,” id. at 38. But in the Mandate itself, CMS acknowledged 
that “the effectiveness of the vaccine to prevent disease transmission by those 
vaccinated [is] not currently known.” 86 Fed. Reg. at 61615; see also id. at 61612 
(“[P]redicting the full range of benefits … is all but impossible”). Applicants’ public-
interest argument is thus admittedly speculative. Moreover, “our system does not 
permit agencies to act unlawfully even in pursuit of desirable ends,” thus precluding 
Applicants’ reliance on the public interest. Alabama Realtors, 141 S. Ct. at 2490. 
Plaintiff States’ evidence further shows that the Mandate will drive out 
healthcare workers, reduce services, and close facilities—particularly in rural 
areas—thereby harming the very Medicare and Medicaid beneficiaries Applicants 
purport to serve. See D. Ct. Docs. 2-2 at 3 (“[O]ur rural nursing facility will soon face 
closing the doors permanently[.]”); 2-7 at 4 (“We are facing losing 67% of our radiology 
staff, 25% of surgical staff, 81% of nursing staff, and 50% of physical therapy staff.”); 
2-8 at 3-4 (“[T]he number of vacant staff positions has roughly doubled from 
September 2020 to September 2021,” from 124 to 250.); 2-12 at 3 (“[L]osing even 10 
or 20 employees, which is a likely outcome of the mandate, may have devastating 
results to our ability to provide the level of care we have provided in the past.”).  
The public interest thus weighs decidedly against Applicants’ requested stay. 
V. 
Applicants Overstate the Certworthiness of Their Claims. 
Finally, Applicants overstate the certworthiness of the questions they 
presently advance. As an initial matter, Applicants have ignored case-dispositive 
grounds on which the challenged injunctions rest, thus rendering the questions they 

 
 
39
do present unworthy of this Court’s review. Supra §I. This Court does not typically 
grant review where the incomplete set of questions presented cannot alter the 
outcome below.  
Moreover, Applicants mischaracterize the split by contenting (at 3-4) that it 
rests on a “precedential decision denying an injunction pending appeal.” Eleventh 
Circuit stay decisions, however, are nonprecedential. See, e.g., Democratic Exec. 
Comm. v. Nat’l Repub. Sen. Comm., 950 F.3d 790, 795 (11th Cir. 2020) (noting that 
“the necessarily tentative and preliminary nature of a stay-panel opinion precludes 
the opinion from having an effect outside that case”). What’s more, because Florida 
has sought initial en banc review of its Florida v. HHS appeal, the “conflicting 
positions adopted by the federal courts of appeals” upon which Applicants rely (at 19) 
could easily disappear before the dispute ever reaches this Court on the merits. 
Applicants raise complex and novel antecedent procedural questions about the 
Secretary’s authority to impose sweeping new changes and conditions for 
participation in the Medicaid and Medicare programs on States, providers, and 
employees without notice and comment or consultation. Cf. Whole Woman’s Health v. 
Jackson, 141 S. Ct. 2494, 2495 (2021). No doubt this dispute is important and may 
easily warrant this Court’s review—after the courts of appeals have passed on the 
merits of the underlying appeals. But Applicants’ claim of a split based on non-
precedential panel stay decisions badly misstates Applicants’ principal current 
certworthiness argument. 

 
 
40
CONCLUSION 
For these reasons, the Court should deny the application for a stay pending 
appeal. 
 
 
 

 
 
41
December 30, 2021  
 
 
 
Respectfully submitted, 
STEVE MARSHALL 
Alabama Attorney General 
 
CHRISTOPHER M. CARR 
Georgia Attorney General 
 
LAWRENCE G. WASDEN 
Idaho Attorney General 
 
THEODORE E. ROKITA  
Indiana Attorney General 
 
DANIEL CAMERON  
Kentucky Attorney General 
 
LYNN FITCH 
Mississippi Attorney General  
 
Counsel for Respondent States 
DAVE YOST 
Ohio Attorney General 
 
JOHN M. O’CONNOR 
Oklahoma Attorney General 
 
ALAN WILSON 
South Carolina Attorney General 
 
SEAN D. REYES  
Utah Attorney General 
 
PATRICK MORRISEY 
West Virginia Attorney General 
Jeff Landry 
Louisiana Attorney 
General 
Elizabeth B. Murrill 
   Solicitor General 
J. Scott St. John 
   Deputy Solicitor General 
Morgan Brungard 
Josiah Kollmeyer 
   Assistant Solicitors 
General 
LOUISIANA DEPARTMENT 
OF JUSTICE 
1885 N. Third Street 
Baton Rouge, LA 70804 
(225) 326-6766 
 
Jimmy R. Faircloth, Jr.  
Mary Katherine Price  
FAIRCLOTH MELTON SOBEL 
& BASH, LLC 
105 Yorktown Drive 
Alexandria, LA 71303 
(318) 619-7755 
 
Mark Brnovich 
Arizona Attorney 
General 
Joseph A. Kanefield 
Chief Deputy & Chief of 
Staff 
Brunn (“Beau”) W. 
Roysden III 
Solicitor General 
Drew C. Ensign 
Deputy Solicitor 
General 
Counsel of Record 
Wilson C. Freeman 
Senior Litigation 
Counsel 
OFFICE OF THE ARIZONA 
ATTORNEY GENERAL 
2005 N. Central Ave. 
Phoenix, AZ 85004 
(602) 542-3333 
Austin Knudsen  
Montana Attorney 
General  
Kristin Hansen 
Lieutenant General 
David M.S. Dewhirst  
Solicitor General  
Kathleen L. Smithgall  
Assistant Solicitor 
General  
MONTANA DEPARTMENT 
OF JUSTICE 
215 North Sanders 
Street   
Helena, MT 59601  
(406) 444-2026

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