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|No injunction pending appeal
challenging mandatory vaccination of
health care workers.
Florida v. Dept of Health and Human
Services (11th Cir 12/06/2021)
Sent to Custom
Alerts™ subscribers on 12/06/2021
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. The State of
Florida challenged the rule, and the trial court denied a
preliminary injunction. The 11th Circuit (2-1) denied Florida's
motion for an injunction pending appeal.
The court said:
"Florida has failed to meet its extremely high burden and clearly
establish its entitlement to a preliminary injunction pending
appeal. *** Florida failed to demonstrate (1) a substantial
likelihood that it will prevail on the merits of its appeal from
the denial of a preliminary injunction; (2) it will suffer
irreparable injury absent an injunction; or (3) the balance of the
equities favor an injunction."
Florida failed to show a
substantial likelihood that it will prevail on its claim that the
Secretary lacked the statutory authority to enact the interim
rule. Congress authorized the Secretary to set standards to
protect the health and safety of patients. Florida argues that the
interim rule should be set aside because the Secretary failed to
comply with the notice-and-comment requirement. But that
requirement does not apply "when the agency for good cause finds
(and incorporates the finding and a brief statement of reasons
therefor in the rules issued) that notice and public procedure
thereon are impracticable, unnecessary, or contrary to the public
Florida also failed to establish that it will
face an irreparable injury. Florida's affidavits predicting new
staffing shortages as a result of the vaccine mandate are
"speculative" and "conclusory."
The court said: "Imposing
an injunction to bar enforcement of the interim rule would harm
the public interest in slowing the spread of COVID-19 and
protecting the safety of Medicare and Medicaid patients and staff.
And this interest is particularly compelling within the setting of
the healthcare facilities at issue, where the population of
patients covered by Medicare and Medicaid is more likely than the
general population to experience severe complications if they
In the course of a 50 page dissent,
Judge Barbara Lagoa wrote: "While Congress has authorized the
Secretary of Health and Human Services general authority to issue
regulations for the 'administration' of Medicare and Medicaid and
the 'health and safety' of recipients, there is no dispute that
there is no specific congressional authorization for the mandate.
Simply put, nothing in 42 U.S.C. §§ 1302 and 1395hh indicates that
Congress intended to assign [the Centers for Medicare and Medicaid
Services] sweeping authority to impose a nationwide vaccine
mandate—not only on healthcare workers providing direct patient
care, but on all facility administrators and employees, trainees,
students, volunteers, and third-party contractors who provide any
care, treatment, or other services for the facilities falling
under the mandate."
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