No Stay in Doe v. Mills, the Maine Healthcare Worker Vaccination Mandate Case

“A stay is an interference into the normal process of administration or judicial review” and, therefore, is not a matter in right but an exercise of discretion. The First Circuit warned that stays cannot be arbitrarily granted: There must be good cause; they must last for a reasonable time; the court must weigh and balance all competing equities. It is the responsibility of the proponent to a stay to establish its necessity. …

Plaintiffs claim that they have good cause to request a stay. This is because their petition for writ de certiorari will likely be granted by the Supreme Court, it involves a significant question of law and would preclude unnecessary litigation. These arguments are non-persuasive for reasons that I will give.

The Plaintiffs claim that the Supreme Court will likely grant their petition for certiorari is not true. Although only three Supreme Court Justices voted for the injunctive relief requested in this case by Plaintiffs, two additional Justices concurred in the denial and stated that they were not interested in analyzing the Plaintiffs’ request as it relates to an emergency application in one case. These two Justices, the Plaintiffs claim, will support review via the regular petition process since similar litigation in the Second Circuit reached the Supreme Court through a petition seeking emergency relief.

Plaintiffs argument does not account for the fact the Justices that declined emergency injunctive relief stated that they did not consider the case worthy of certiorari. Justice Barrett advised against the granting of emergency relief to an applicant who is not likely to win on the merits.[w]The emergency docket could be used by applicants to make the Court provide a merits preview for cases in which it is unlikely that they will take. Justice Kavanaugh also joined this opinion. Even though it’s not clear, Justices Barrett-Kavanaugh have stated that emergency injunctive relief was denied. It is possible they do not believe they can support certiorari.

Plaintiffs claim that they have good cause to suspend proceedings due to a significant question of law is based solely upon Justice Gorsuch’s disobedience from their Supreme Court denial of emergency injunctive relief. Justice Gorsuch stated that:[t]This case involves an important constitutional issue, an error of judgment, and irreparable injuries. These Plaintiffs interpret this statement to indicate that they have good cause to believe that a writ is granted to them.

Plaintiffs argument ignores Justice Gorsuch’s dissent. In the absence of trial court records, the Plaintiffs do not support the assertion that Justice Gorsuch asserts at least three more Justices. This Court also noted that “”[b]ased on sheer numbers, the likelihood that the United States Supreme Court will accept any case on certiorari is remote … especially in the absence of a conflict on the issue among circuit courts.” The Circuit Courts that dealt with the issue have rejected the arguments made by the Plaintiffs. See Mills, Does 1 – 6. (1st Cir. 2021); We The Patriots USA, Inc. (2d Cir. 2021).

Additionally, the Plaintiffs argue that merits reviews of their case are more probable due to the fact that there were already two New York cases similar awaiting review at the Supreme Court. But, injunctive relief has been denied by the Supreme Court in New York case cases since the Plaintiffs have filed their motion for stay. This argument does not support a stay in this case.

Rather than showing that further development of this case at the trial court level would be unnecessary, the Plaintiffs’ arguments, considered in context, demonstrate that additional development of the record is needed for the full evaluation of the merits of the Plaintiffs’ claims at both the trial and appellate levels….

Next, Plaintiffs argue that they requested expedited review for the petition for certiorari and the Supreme Court will host its next case conference January 7, 2022 so the delays in the proceedings due to the grant of a stop would be minimal. However, on December 6, 2021, the Supreme Court denied  the Plaintiffs’ request for expedited review. The Supreme Court denied the Plaintiffs’ request for expedited review on December 6, 2021. The Plaintiffs have not demonstrated, beyond mere conjecture, that a stay, if granted, would be for a reasonable duration….

According to the Plaintiffs, the equity weights in their favor since granting a stay would be beneficial for the Court as well as all the parties because it will avoid unnecessary litigation costs.

The following are the main points to consider when evaluating a motion for a stay.[l]Even if a “substantial, unrecoupable” cost is incurred, it does not create hardship or cause inequity that would require a stay of proceedings.[B]A suit is not a clear case of hardship, inequity, if you are required to defend it. [the relevant precedent].“The Plaintiffs’ responsibility to pay the foreseeable litigation expenses associated with a civil case that they initiated doesn’t, without further, create unfair hardship or inequality.

In the end, I think the Plaintiffs’ request for a stay is not in the public interest. For reasons I have already explained, the path to the quickest and final resolution of those issues is the timely development of an evidentiary record by this court….

As there is no rule that regulates a petition in federal district court proceedings pending disposition of a petition for certiorari (or any other type of petition), the Plaintiffs argue that a stay must be granted according to Federal Rule of Appellate Procedure41(d).(1). This applies to petitions to remain the mandate of a court pending filing of a certiorari petition. Appellate Rules 41(d),(1) requires that the plaintiff seeking a stay must show “that the petition will present a substantial problem and that there are good reasons for a stay.” MaineHealth- Genesis Provider Defendants suggest that this rule offers useful guidance, but not binding, for exercising the court’s discretion.

Plaintiffs challenged Maine’s vaccine mandate based on First Amendment grounds. The Plaintiffs argued that lack of religious exemption violates Plaintiffs’ Free Exercise right and Title VII’s religious accommodation provisions preempt the vaccination mandate. Plaintiffs ask for review by the First Circuit of its affirmation that I denied a preliminary injunction to stop Maine’s vaccination mandate for healthcare workers. In denying the Plaintiffs’ request for emergency relief, the Supreme Court rejected their application for relief. The Supreme Court did not grant a request for relief for New York State officials who had a similar mandate for vaccines. In [that case]As in the case above, injunctive relief was denied by the circuit court.

A preliminary injunction has never been affirmed by a circuit court in the same case. Therefore there is no substantial issue for the Supreme Court. As the Supreme Court has made it clear, the majority of Justices don’t view this First Amendment question as raising any substantial questions that require immediate resolution. Additionally, as to the Title VII claims, the Plaintiffs have not argued that a substantial question exists….