Split Eleventh Circuit Panel Holds That Nationwide Injunction of a Federal Vaccine Mandate in Louisiana Court Does Not Moot Issue of an Emergency Injunction Pending Appeal in Florida, Casting Doubt on Propriety of the Louisiana Court’s Nationwide Order

In a 94-page order about whether to grant the State of Florida an injunction pending appeal of the federal government’s COVID-19 vaccine mandate in hospitals, a split panel in State of Florida v. Dep’t of Health and Human Servs., No. 21-10498 (11th Cir. Dec. 6, 2021), holds that the entry of a “nationwide” injunction of the mandate in a Louisiana district court of the Fifth Circuit did not moot the issue before the Eleventh Circuit.

“On November 5, 2021, the Secretary of Health and Human Services issued an interim rule that requires facilities that provide health care to Medicare and Medicaid beneficiaries to ensure that their staff, unless exempt for medical or religious reasons, are fully vaccinated against COVID-19. See Omnibus COVID-19 Health Care Staff Vaccination, 86 Fed. Reg. 61,555 (Nov. 5, 2021) (the ‘interim rule’). Under the interim rule, covered staff must receive their first dose of a two-dose vaccine or a single-dose vaccine by December 6, 2021, or request an exemption by that date.”

The State of Florida challenged the mandate in federal district court on constitutional, statutory, and regulatory grounds. A judge in the U.S. District Court for the Northern District of Florida denied a preliminary injunction, and the state appealed. The state filed a “Time-Sensitive Motion for Injunction Pending Appeal” in the Eleventh Circuit. The panel majority denied the relief on the merits, while Judge Lagoa filed a 49-page dissent holding that the state established the traditional elements for a preliminary injunction (likelihood of success, irreparable harm, balance of equities, public interest).

One issue that the panel majority confronts (the dissent gives it no coverage) was whether the preliminary injunction was mooted by a development in another circuit. Three lawsuits had been filed in three circuits by states and groups of states seeking to enjoin the mandate: the present case; Missouri v. Biden, No. 4:21-cv-1329 (E.D. Mo. Nov. 29, 2021) and Louisiana v. Becerra, No. 3:21-cv-03970 (W.D. La. Nov. 30, 2021). The Missouri case resulted in an injunction for ten states, while “the district court in Louisiana entered its own order granting the plaintiff states’ motion for a preliminary injunction. The Louisiana court entered a nationwide injunction (save for the states already covered by the Missouri injunction).”

The Louisiana injunction facially enjoined the mandate in Florida, so the panel faced the issue of whether that injunction mooted the relief of a stay in the Eleventh Circuit. For “if the Louisiana injunction already enjoined the interim rule’s application in Florida, then Florida’s requested relief here—enjoining enforcement of the interim rule—could accomplish nothing more.” The panel nevertheless holds that it had jurisdiction over the question despite the Louisiana preliminary injunction, and that prudential concerns otherwise “militated in favor of our decision to rule.”

“Florida’s insistence that we decide this motion raised the capable-of-repetition-yet-evading-review exception to mootness. Under this exception, we may review a matter ‘if (1) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subjected to the same action again.’ United States v. Sanchez-Gomez, ___ U.S. ___, 138 S. Ct. 1532, 1540 (2018) (internal quotation marks omitted).”

“Working backwards under the governing test, we start with the recognition that a reasonable expectation exists that Florida would be subjected to the interim rule again. That was so because a reasonable expectation existed that during its review of the Louisiana injunction, the Fifth Circuit would, at the very least, do away with the nationwide aspect of that order.”

“Of course, we do not purport to review the propriety of the nationwide aspect of the Louisiana injunction; that’s the Fifth Circuit’s job. But to assess the applicability of the capable-of-repetition-yet-evading-review exception, we necessarily had to gauge the likelihood that the nationwide aspect of the Louisiana injunction would withstand scrutiny. And when we did that, we concluded that there was a reasonable expectation that, at the least, the Fifth Circuit would not uphold the nationwide aspect of the injunction.”

The panel majority so holds because the doubtful propriety of the nationwide injunction in Louisiana. The “appropriate circumstances” for nationwide or universal injunctions “are rare,” and the panel majority finds that the exceptional grounds for granting them are not present here.

“First, the court could have provided complete relief to the plaintiffs with an injunction limited in scope to the States that were plaintiffs there. Yet it nonetheless awarded relief to nonparties. Jurists and scholars have called into question both the wisdom and propriety of granting relief to nonparties.”

“Second, this case raises no concerns that a non-nationwide preliminary injunction wouldn’t provide the plaintiffs with complete relief because the plaintiffs were not dispersed among the United States or ‘myriad jurisdictions’ like in a nationwide class action . . . . Rather, the plaintiffs were the fourteen states themselves. So the Louisiana court would have had no trouble fashioning a remedy that was certain to include all the plaintiffs.” Indeed, the Missouri federal district court had already done so, entering relief just for the states present in that case.

“Third, courts have frequently found that a nationwide injunction can be warranted in the immigration law context or when certain unconstitutionality is found.” Yet this case does not involve immigration law, and no individual threats to liberty were found. “Here, the plaintiff states in Louisiana did raise, and the court found a likelihood of success on the merits of, various constitutional challenges. But those challenges related to the Spending Clause, Tenth Amendment, Non-Delegation Doctrine, and Anti-Commandeering Doctrine . . . . They did not implicate threats to constitutionally protected individual liberties such that nationwide relief would be warranted.”

“Fourth, any desire on the part of the Louisiana district court to avoid a patchwork of injunctions was outweighed by the need for ‘development in different factual contexts and in multiple decisions by the various courts of appeals.’ California v. Azar, 911 F.3d 558, 583 (9th Cir. 2018) (internal quotation marks omitted). When, as here, a regulatory challenge involves important and difficult questions of law, it is especially vital that various courts be allowed to weigh in so that the issues can percolate among the courts.”

In sum, “[q]uite simply, this does not appear to be one of those ‘rare’ situations where a nationwide injunction is warranted or even justifiable. For those reasons, it seemed to us an eminently ‘reasonable expectation” that, at the very least, the nationwide aspect of the Louisiana injunction would be eliminated, and Florida would be subject to the interim rule when upon its taking effect on December 6.”

The panel majority also finds that prudential considerations supported the exercise of equitable power and to not abstain especially the Eleventh Circuit’s authority as a co-equal court to decide the law. “Here, the Louisiana district court never acknowledged that the district court in this case had already denied Florida’s motion for a preliminary injunction. It likewise did not consider the comity problems that arose from effectively awarding relief to Florida that the district court in this case had already denied . . . . [And] when a case raises a novel and important issue, allowing multiple federal appellate courts the opportunity to express their views on the issue adds value.”