ALICIA LOWE; DEBRA CHALMERS; JENNIFER BARBALIAS; GARTH BERENYI; NICOLE GIROUX; ADAM JONES; NATALIE SALAVARRIA v. SARA GAGNÉ-HOLMES, in her official capacity as Acting Commissioner of the Maine Department of Health and Human Services; DR. PUTHIERY VA, Director for the Maine Center for Disease Control and Prevention; JANET T. MILLS, in her official capacity as Governor of the State of Maine; NANCY BEARDSLEY, in her official capacity as Acting Director of the Maine Center for Disease Control and Prevention; MAINEHEALTH; GENESIS HEALTHCARE OF MAINE, LLC; GENESIS HEALTHCARE LLC; MAINEGENERAL HEALTH; NORTHERN LIGHT EASTERN MAINE MEDICAL CENTER
No. 24-1283
United States Court of Appeals For the First Circuit
January 17, 2025
Barron, Chief Judge, Lynch and Howard, Circuit Judges.
Daniel J. Schmid, with whom Mathew D. Staver, Horatio G. Mihet, and Liberty Counsel were on brief, for appellants.
Kimberly L. Patwardhan, Assistant Attorney General, Office of the Maine Attorney General, with whom Aaron M. Frey, Attorney General, and Thomas A. Knowlton, Deputy Attorney General, Chief, Litigation Division, Office of the Maine Attorney General, were on brief, for appellees.
LYNCH, Circuit Judge.
This appeal challenges the district court‘s February 23, 2024 dismissal on mootness grounds of appellants’ constitutional challenge to Maine‘s COVID-19 vaccine mandate for certain healthcare workers, which was originally promulgated by emergency rule on August 12, 2021, no longer enforced as of July 12, 2023, and repealed by amendment of the regulation, effective on September 5, 2023. See
In 2021, the appellants filed suit in the United States District Court for the District of Maine against their former employers and various Maine government officials, asserting that the failure of the mandate to provide for religious exemptions violated, inter alia, the
On February 14, 2022, the defendants moved to dismiss the complaint for failure to state a claim, which was granted on August 18, 2022. In May 2023, this court affirmed in part and reversed in part, reversing the dismissal of the
Following the September 2023 repeal of the challenged regulation, the defendants moved to dismiss these remaining claims as moot, and their motion was granted. The district court also denied the appellants leave to amend the complaint. This timely appeal followed.
On de novo review, we affirm the district court‘s determinations that the defendant state health officials have met their burden to show the challenge is moot and that no exceptions to mootness apply. See Bos. Bit Labs, Inc. v. Baker, 11 F.4th 3, 8-12 (1st Cir. 2021); Corrigan v. Bos. Univ., 98 F.4th 346, 353-54 (1st Cir. 2024); Harris v. Univ. of Mass. Lowell, 43 F.4th 187, 194-95 (1st Cir. 2022). We also affirm the denial of appellants’ request to amend their complaint. See Palmer v. Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006).
I.
We have previously recounted the background facts and procedural history of this matter, including the genesis of the Maine covered healthcare workers COVID-19 vaccine mandate, see Lowe, 68 F.4th at 709-13; Does 1-6, 16 F.4th at 24-28. We focus here on the facts bearing on the repeal of the Maine mandate and the mootness issue.
On January 30, 2023, the Biden administration announced its intent to extend the COVID-19 health emergency to May 11, 2023, and then to end it on that date. On May 1, 2023, the federal Centers for Medicare and Medicaid Services (“CMS“) announced that it would soon end the requirement
On July 11, 2023, MDHHS announced that it was proposing to end the requirement that employees be vaccinated against COVID-19 and that it would not enforce the requirement during the pendency of the procedural requirements to repeal the regulation. In the announcement, MDHHS explained:
While COVID-19 vaccination remains an important tool to protect public health, the vaccination requirement for health care workers achieved the intended benefits of saving lives, protecting health care capacity, and limiting the spread of the virus in Maine during the height of the pandemic. Despite having the oldest population in the nation, Maine consistently rated among the top states in the country on vaccination and among the lowest on COVID-19 deaths. Maine currently ranks third on bivalent booster vaccination overall and first for those age 65 and older. Additionally, Maine health care professionals’ strong culture of patient safety has limited risk of severe COVID-19 being spread among staff and patients.
The Department filed the proposed rule change with the Secretary of State today based on available clinical and epidemiological data about COVID-19, increased population immunity resulting from vaccination and prior infections, decreasing disease severity, improved treatments, and declining infection and death rates. This follows [CMS‘s] withdrawal of its requirement for COVID-19 vaccination of health care workers on June 6, 2023. Maine is among four remaining states with some type of COVID-19 vaccine requirement.
Per Maine law, the amendment of the regulation went through public notice and comment. The Rulemaking Fact Sheet stated, in part:
This proposed change is based on available clinical and epidemiological data about COVID-19, increased population immunity resulting from vaccination and prior infections, decreasing disease severity, improved treatments, and declining infection and death rates. In addition, [CMS] in June 2023 withdrew the COVID-19 vaccine requirement for healthcare employees, following the May 11, 2023 end of the federal Public Health Emergency for COVID-19.
The proposal entailed removing COVID-19 from the list of specified infectious diseases against which immunizations are required and other changes reflecting that removal. The changed MDHHS regulation became effective on September 5, 2023.
In support of its post-repeal motion to dismiss and in addition to the public records described above, the Deputy Director of the MCDC, an office within MDHHS, submitted a declaration. The MDHHS Declaration stated that since November of 2021, MDHHS and MCDC had continued to monitor the COVID-19 public health situation in Maine, and that MDHHS began
The appellants opposed dismissal but did not put in any evidence and chose not to depose any state officials. They do not contest the accuracy of the defendants’ data but strenuously argue the data does not support mootness.
In holding that the challenges were moot, the district court rejected the appellants’ argument that they had mounted a facial attack on the statute authorizing the challenged regulation and setting forth exemptions. See
The district court then held the repeal of the COVID-19 vaccine regulation mooted the case because the court “[could not] provide any relief to the Plaintiffs that
In holding that the defendants had met their burden to show the voluntary cessation exception did not apply, the court rejected the appellants’ argument that the defendants “engaged in a bad faith litigation tactic” in repealing the mandate soon after our May 25, 2023 opinion. Id. at 80-81. The court held that argument “[did] not account[] for obviously relevant Federal and State governmental actions, [and] is based on a substantially incomplete and, therefore, misleading narrative of the relevant events.” Id. at 81. The court also noted that the appellants had “not supported their position with declarations under oath or exhibits, nor ha[d] they requested permission to perform discovery on the issue.” Id.
The exception for conduct capable of repetition but evading review likewise did not apply because the appellants had “fail[ed] to present any positive, non-speculative evidence to support a reasonable expectation that they will be subject to the challenged COVID-19 vaccination requirement -- or one substantially similar to it -- again.” Id.
The court denied appellants’ request for leave to amend the complaint, made in their opposition. Id. at 77. The district court held that “justice does not require permitting the Plaintiffs to further amend the Amended Complaint to drastically broaden the scope of their claims to challenge all possible applications of the [designated healthcare facilities] worker immunization rule and the Department‘s authorizing statute.” Id. Moreover, the appellants “ha[d] not identified any post-filing transactions, occurrences, or events that would justify additional amendments” under
II.
We review the mootness determination de novo. Bos. Bit Labs, 11 F.4th at 8.
A. Appellants have not mounted a facial challenge to the statute
The district court correctly concluded that the appellants’ complaint did not present a facial challenge to the statute,
“The ‘heavy’ burden of showing mootness is on the party raising the issue.” Bos. Bit Labs, 11 F.4th at 8 (quoting Connectu LLC v. Zuckerberg, 522 F.3d 82, 88 (1st Cir. 2008)). The state officials have met their burden to show that the appellants’ claims for relief are moot. “Article III limits federal court jurisdiction to ‘cases’ and ‘controversies.‘” O‘Neil v. Canton Police Dep‘t, 116 F.4th 25, 30 (1st Cir. 2024) (quoting
The appellants sought “a permanent injunction . . . restraining and enjoining [state] Defendants . . . from enforcing, threatening to enforce, attempting to enforce, or otherwise requiring compliance with the Governor‘s COVID-19 Vaccine Mandate.” Because the COVID-19 vaccine mandate has been repealed by way of COVID-19‘s removal from Chapter 264, and it has not been reinstated, there is simply “no ongoing conduct to enjoin,” and the claim for injunctive relief is accordingly moot. Bos. Bit Labs, 11 F.4th at 9 (quoting Lewis, 813 F.3d at 58) (claim for injunctive relief was moot where executive order imposing challenged COVID-19 restriction was no longer in effect).
In order for appellants’ request “[f]or declaratory relief to withstand a mootness challenge, the facts alleged must ‘show that there is a substantial controversy . . . of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.‘” ACLU of Mass., 705 F.3d at 53-54 (emphasis omitted) (second alteration in original) (quoting Preiser v. Newkirk, 422 U.S. 395, 402 (1975)). Because the COVID-19 vaccination mandate no longer exists and is “no longer in controversy,” this request for relief “is at this point neither immediate nor real.” Bos. Bit Labs, 11 F.4th at 9 (second quoting Lewis, 813 F.3d at 58). Our sister circuits have also held that challenges to COVID-19 vaccination requirements become moot when those requirements are rescinded. See, e.g., Donovan v. Vance, 70 F.4th 1167, 1172 (9th Cir. 2023) (holding that case including claims for declaratory and injunctive relief was moot after challenged executive orders creating COVID-19 vaccine mandate no longer existed); Marciano v. Adams, No. 22-570-CV, 2023 WL 3477119, at *1 (2d Cir. May 16, 2023) (claims for declaratory and injunctive relief were moot because COVID-19 vaccine mandate had been repealed and we “cannot enjoin what no longer exists” (quoting Exxon Mobil Corp. v. Healey, 28 F.4th 383, 393 (2d Cir. 2022))); Navy SEAL 1 v. Austin, No. 22-5114, 2023 WL 2482927, at *1 (D.C. Cir. Mar. 10, 2023) (unpublished) (dismissing as moot relief after COVID-19 vaccine mandate had been rescinded); Regalado v. Dir., Ctr. for Disease Control, No. 22-12265, 2023 WL 239989, at *1-2 (11th Cir. Jan. 18, 2023) (case was moot where challenged COVID-19 vaccination mandate was withdrawn).
C. Exceptions to mootness do not apply
A primary focus of the appellants’ argument to us is their contention that the exceptions to mootness apply. We disagree. The state defendants have met their burden of showing that the voluntary cessation doctrine does not apply. See Bos. Bit Labs, 11 F.4th at 10. The appellants bear the burden of showing that the exception for conduct capable of repetition yet evading review applies, Gulf of Me. Fishermen‘s All. v. Daley, 292 F.3d 84, 89 (1st Cir. 2002), and have not met that burden.
The voluntary cessation doctrine creates an exception to mootness where two tests are met: “‘a defendant voluntar[ily] ceases the challenged practice in order to moot the plaintiff‘s case and there exists a reasonable expectation that the challenged conduct will be repeated’ after the suit‘s ‘dismissal.‘” Bos. Bit Labs, 11 F.4th at 9 (alteration in original) (emphasis added) (quoting Lewis, 813 F.3d at 59). Under the first test, the exception does not apply to changes in conduct that are “unrelated to the litigation,” given that the exception “exists to stop a scheming defendant from trying to ‘immuniz[e] itself from suit indefinitely’ by unilaterally changing ‘its behavior long enough to secure a dismissal’ and then backsliding when the judge is out of the picture.” Id. at 10 (alteration in original) (quoting Lewis, 813 F.3d at 59).
We begin our analysis with the second test: whether “it is ‘absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.‘” Calvary Chapel of Bangor v. Mills, 52 F.4th 40, 47 (1st Cir. 2022) (quoting Friends of the Earth, Inc. v. Laidlaw Env‘t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)).
i. The challenged conduct is not reasonably expected to recur
The defendant state health officials have met their burden to show that the challenged conduct “[can]not reasonably be expected to recur.” Id. (quoting Friends of the Earth, 528 U.S. at 189). The MDHHS Declaration states that MDHHS “has no plans to include COVID-19 again among the diseases against which [designated healthcare facilities] must ensure their employees are vaccinated against in the healthcare worker vaccination rule.” The COVID-19 vaccine mandate also has not been reinstated in the nineteen months since its enforcement ended and in the seventeen plus months since its repeal. See id. at 49 (voluntary cessation exception did not apply in part because state had not attempted to “reinstate” or “impose anything like the complained-about restrictions” in intervening months).
On this record, it is extremely unlikely that the risks presented by any future variation in the SARS-CoV-2 virus would require the reinstatement of the same or an equivalent vaccine mandate. See Bos. Bit Labs, 11 F.4th at 11 (the conclusion that the Governor would again declare a COVID-19 emergency and reinstitute previous policies was “unrealistically speculative“); Corrigan, 98 F.4th at 353 (Because “there are no signs that the pandemic will worsen, it is not reasonable to expect that BU again will impose a similar testing program.“).4 The regulation was geared to
essential healthcare workers in Maine had completed the primary series of COVID-19 vaccinations, with 99.8 percent having received at least one dose. Data from July 31, 2023 indicated that, at that time, 91.9 percent of adults in Maine had completed a primary series of COVID-19 vaccinations and 31.2 percent had received at least one additional dose of a bivalent vaccine, which targeted more variants of the virus.
The data on which MDHHS relied showed that, as to changes in circulating variants, the SARS-CoV-2 virus has mutated a number of times. Since the regulation was implemented, the Omicron variant became the predominant variant in the United States, and the Omicron variant caused fewer deaths and hospitalizations per year on a population level than had the Delta variant of 2021 or the variants circulating in 2020.
The data on which MDHHS relied showed that prevalence of the COVID-19 disease had also diminished. Data regarding hospitalization rates in 2023 relative to 2022 showed an overall decrease. For example, in June of 2023, the average number of hospitalized COVID-19 patients per day in Maine had been thirty-seven, compared with 137 in June 2022. COVID-19 deaths likewise declined between 2022 and 2023. In June of 2023, there were ten COVID-19 deaths in Maine, compared with fifty-seven in June 2022.
The data also showed new and effective treatments had been developed: three antiviral treatments for COVID-19 including Paxlovid and Lagrevio. COVID-19 antigen tests have also become widely available since 2021, when Maine experienced a shortage. Bivalent formulations and booster doses of vaccines were approved, and in late 2021 and 2022, the FDA expanded authorizations for children of certain ages to receive different vaccines. In August 2022, the FDA issued an Emergency Use Authorization for the Novavax COVID-19 vaccine for people who are unable or unwilling to receive an mRNA vaccine. All of
Nor does the fact that the defendant state health officials have the authority to promulgate regulations as to future events negate mootness. As held in Bos. Bit Labs, 11 F.4th at 10; see Calvary Chapel, 52 F.4th at 49 (rejecting argument that voluntary cessation exception applied because appellant “face[d] a constant threat that [the Governor] will use [her] power to restore [COVID-19] restrictions that (allegedly) discriminate against religious services“).
ii. Repeal of the mandate was not done to moot the litigation
Although, strictly speaking, the voluntary cessation doctrine does not apply if the party seeking mootness can show either that the challenged conduct cannot reasonably be expected to recur or that it was ceased for a non-litigation reason, the defendant state officials have independently demonstrated that the “voluntary” repeal of the COVID-19 regulatory vaccine mandate was not done in order to moot the case. The evidence of record demonstrates that when MDHHS instituted the regulation, it did so in response to its own assessment of the risks posed by the Delta variant circulating at the time and the risk posed by the circulating COVID-19 variants to its citizens and its healthcare workers. The repeal of the regulation followed the same characteristic behavior.
After imposing the vaccine mandate, MDHHS and MCDC continued to monitor the COVID-19 public health situation in Maine. In early 2023, when the federal government announced that the public health emergency would end on May 11, MDHHS began planning for the end of Maine‘s public health emergency, which was set to terminate on the same date. In early May, CMS announced that it planned to rescind the federal vaccine requirement, which it did on June 5, 2023. Following these events, and in recognition of “changed circumstances regarding COVID-19 variants, vaccination rates, and disease prevalence,” around the end of May and the beginning of June, MDHHS began a review of the available science and research undergirding its vaccine requirement. It concluded, based on the changed COVID-19 risk in Maine, that the mandate was no longer necessary. Accordingly, after conducting this evidence-based review, MDHHS announced on July 11, 2023 that it would be repealing the mandate. This approach -- sensitive to changes in the COVID-19 virus and informed by scientific research -- is the same approach that Maine has taken regarding other COVID-19 policies. See, e.g., Calvary Chapel, 52 F.4th at 48 (determining that Governor Mills rescinded COVID-19 policies based on “expert advice” and evolving information about case counts, positivity rates, and vaccination rates).
The appellants argue that the timing shows that it was this court‘s reinstatement of their claims and remand which motivated the Maine health officials to revoke the regulation. They support this contention by pointing to evidence showing that “the number of hospitalizations and deaths were increasing dramatically at the exact time of Defendants’ repeal.” The appellants point only to two months of data, but the complete set of data that the state reviewed showed an overall decline in hospitalizations and deaths since the vaccine mandate was issued. The increases that appellants point to also represent small
In light of contemporaneous events and documented changes in the COVID-19 pandemic that reasonably explain defendants’ decision to review and repeal the vaccine mandate, and the “presumption of regularity” typically accorded governmental decision-making in this context, Health Freedom Def. Fund, Inc. v. Carvalho, 104 F.4th 715 (9th Cir. 2024), the mere fact of an overlap with this court‘s opinion does not plausibly suggest the conclusion that the repeal of the regulation was motivated by an effort to moot out the case. Coincidence is not causation.
iii. Capable of repetition yet evading review exception does not apply
Appellants have not met their burden to show that the final exception to mootness for conduct capable of repetition yet evading review applies. “[T]he capable-of-repetition doctrine applies only in exceptional situations.” ACLU of Mass., 705 F.3d at 57 (alteration in original) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983)); see also Kingdomware Techs., Inc. v. United States, 579 U.S. 162, 170 (2016). To prove the exception, an appellant “must show that ‘(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.‘” Daley, 292 F.3d at 89 (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam)).
The appellants have not met their burden as to either prong. As to the first prong, appellants “must show that ‘the generic types of claims that they seek to pursue are likely to evade review.‘” Harris, 43 F.4th at 194 (quoting Cruz v. Farquharson, 252 F.3d 530, 535 (1st Cir. 2001)). Here, the factual circumstances -- a disease outbreak and corresponding vaccination regulation -- are not, per se, of the “inherently transitory” nature that always evades review. See, e.g., ACLU of Mass., 705 F.3d at 57 (collecting cases); Moore v. Ogilvie, 394 U.S. 814, 816 (1969) (some challenges to elections are capable of repetition yet evading review because “while the 1968 election is over, [the challenged burden] remains and controls future elections, as long as [the state defendant] maintains her present system as she has done since 1935“); Roe v. Wade, 410 U.S. 113, 125 (1973) (“[W]hen . . . pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete.“), overruled on other grounds by Dobbs v. Jackson Women‘s Health Org., 597 U.S. 215 (2022); Neb. Press Ass‘n v. Stuart, 427 U.S. 539, 546-47 (1976) (temporary restraining orders were capable of repetition yet evading review because “these orders are by nature short-lived“). Nor were they “‘in [their] duration too short to be fully litigated’ through the . . . courts (and arrive [at the Supreme Court]) prior to its ‘expiration.‘” Turner v. Rogers, 564 U.S. 431, 440 (2011)(quoting First Nat‘l Bank of Bos. v. Bellotti, 435 U.S. 765, 774 (1978)); see also Harris, 43 F.4th at 194 (holding that plaintiffs must show “a realistic threat [exists] that no trial court ever will have enough time to decide the underlying issue[]” (quoting Cruz, 252 F.3d at 535)). The claims here are not like those that the Supreme Court has recognized as “inherently transitory“: the vaccine mandate could have been in effect for much longer or even permanently had the public health situation evolved differently. It was not “by nature short-lived” along the lines of elections, pregnancy, or temporary restraining orders.6 Neb. Press Ass‘n, 427 U.S. at 547. Indeed, we have
similarly held that challenges to a university‘s COVID-19 vaccination requirements were “not among or closely analogous to” types of claims recognized as “inherently transitory.” Corrigan, 98 F.4th at 353 (quoting Harris, 43 F.4th at 194). The appellants have also not shown that “a realistic threat” exists that there would be insufficient time to obtain a judgment on the merits before the repeal of the mandate. See id. at 353 (quoting Cruz, 252 F.3d at 535).
The duration of the vaccine mandate here was similar to durations in other cases holding that the exception does not apply. See Corrigan, 98 F.4th at 353 (holding that, with regard to a COVID-19 vaccination requirement, “[i]t is struthious at best to suggest that a resource-intensive effort continuously spanning almost two years is so fleeting that a court could never have time to pass on its legality“); Robert v. Austin, 72 F.4th 1160, 1165 (10th Cir. 2023) (holding that duration of COVID-19 vaccine mandate, which was in effect for about a year and a half, was not too short to be fully litigated such that “capable of repetition but evading review” exception did not apply); see also Fund for Animals, Inc. v. Hogan, 428 F.3d 1059, 1064 (D.C. Cir. 2005) (“As a general rule, two years is enough time for a dispute to be litigated.“).
As to the second prong, for the reasons we have already pointed out, the appellants have simply not shown that they will be subject to the same regulation again. See Corrigan, 98 F.4th at 354; see also Resurrection Sch. v. Hertel, 35 F.4th 524, 530 (6th Cir. 2022) (en banc) (capable-of-repetition-yet-evading-review exception was “inapposite for largely the same reasons” as voluntary cessation because “the challenged mandate was a product of the pandemic‘s early stages, and . . . . [w]e are unlikely to see this mandate in a similar form again“).
III.
We review the district court‘s denial of the appellants’ request for leave
The district court also did not abuse its discretion in denying the appellants leave to file supplemental pleadings under
We affirm the district court‘s dismissal of this suit as moot and the denial of the motion to amend.
Notes
has no plans to include COVID-19 again among the diseases against which [designated healthcare facilities] must ensure their employees are vaccinated against in the healthcare worker vaccination rule. . . . [B]ased on the available clinical and epidemiological data about COVID-19, increased population immunity resulting from vaccination and prior infections, decreasing disease severity, improved treatments, and declining hospitalization and death rates, it is highly unlikely that [MDHHS] will seek to impose COVID-19 vaccination requirements on [designated healthcare facilities] in the future.