The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

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

The district court refuses to issue a stay pending the Supreme Court's consideration of the plaintiffs' cert. petition.


From Doe v. Mills, decided today by Chief Judge Jon Levy (D. Me.):

"'A stay is an intrusion into the ordinary process of administration and judicial review,' and is therefore 'not a matter of right,' but rather is an exercise of discretion." The First Circuit has cautioned that "stays cannot be cavalierly dispensed: there must be good cause for their issuance; they must be reasonable in duration; and the court must ensure that competing equities are weighed and balanced." "The proponent of a stay bears the burden of establishing its need." …

The Plaintiffs contend that good cause for a stay exists because the Supreme Court is likely to grant their petition for writ of certiorari, the case involves a substantial question of law that could be dispositive of the case, and a stay would prevent potentially unnecessary litigation on the merits. For reasons I will explain, these arguments are unpersuasive.

First, the Plaintiffs' assertion that the Supreme Court is likely to grant the petition for writ of certiorari is unavailing. They argue that although only three Supreme Court Justices voted to grant the injunctive relief they sought in this case, two additional Justices who had concurred in the denial explained that they did not want to analyze the issues raised by the Plaintiffs' request in the context of an emergency application from one case. The Plaintiffs argue that those two Justices will likely support review through the ordinary petition process now that similar litigation from the Second Circuit has also reached the Supreme Court through a petition for emergency relief.

The Plaintiffs' argument fails to account for the fact that the two Justices who declined to grant the requested emergency injunctive relief indicated that they viewed the case as a poor candidate for a grant of certiorari. Justice Barrett cautioned against granting emergency relief where the applicant is unlikely to succeed on the merits because, "[w]ere the standard otherwise, applicants could use the emergency docket to force the Court to give a merits preview in cases that it would be unlikely to take." Justice Kavanaugh joined in this opinion. Although far from certain, Justices Barrett and Kavanaugh's stated reason for denying emergency injunctive relief suggests that they will not support a grant of certiorari review.

The Plaintiffs' argument that good cause exists to stay the proceedings because a substantial question of law exists relies singularly on Justice Gorsuch's dissent from the Supreme Court's denial of their application for emergency injunctive relief. Justice Gorsuch wrote that "[t]his case presents an important constitutional question, a serious error, and an irreparable injury." The Plaintiffs characterize this statement as evidence that they are likely to be granted a writ of certiorari, and that good cause exists for this Court to grant a stay.

The Plaintiffs' argument obscures the fact that Justice Gorsuch wrote in dissent. The Plaintiffs offer no support for the proposition that at least three additional Justices agree with Justice Gorsuch's assertion absent the development of a trial court record. In addition, as this Court has previously observed, "[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." Here, the two Circuit Courts to address the issues presented here have aligned in rejecting the arguments put forth by the Plaintiffs. See Does 1-6 v. Mills (1st Cir. 2021); We The Patriots USA, Inc. v. Hochul (2d Cir. 2021).

The Plaintiffs also argue that because there were two similar New York cases pending review by the Supreme Court on requests for preliminary injunctive relief at the time the Plaintiffs filed their motion to stay proceedings, a merits review of their case is more likely. However, since the Plaintiffs' filing of their motion to stay proceedings, the Supreme Court has denied injunctive relief in the New York cases. This argument, therefore, lends no support for a stay of 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, the Plaintiffs argue that because they sought expedited review of the petition for writ of certiorari, and because the Supreme Court will hold its next case conference on January 7, 2022, the delay in proceedings resulting from the grant of a stay would be minimal. However, on December 6, 2021, the Supreme Court denied  the Plaintiffs' request for expedited review. Additionally, there is no guarantee that the Plaintiffs' petition will be considered during the January 7, 2022 case conference. The Plaintiffs have not demonstrated, beyond mere conjecture, that a stay, if granted, would be for a reasonable duration….

The Plaintiffs argue that the equities weigh in their favor because granting a stay would benefit the Court and all parties by avoiding potentially unnecessary litigation costs.

In the context of evaluating a request for a stay of proceedings, "[l]itigation expenses, even a 'substantial and unrecoupable cost,'" do not give rise to hardship or inequity requiring a stay in proceedings. "[B]eing required to defend a suit, without more, does not constitute a 'clear case of hardship or inequity' within the meaning of [the relevant precedent]." The Plaintiffs' responsibility to pay foreseeable litigation costs associated with a civil action that they initiated does not, without more, give rise to unfair hardship or inequity.

On balance, I find that the public's interest in the speedy and just determination of civil proceedings, particularly a civil proceeding presenting issues of great public importance, favors the denial of the Plaintiffs' stay request. 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….

Noting that there is no specific rule that governs a petition to stay federal district court proceedings pending disposition of a petition for certiorari, the Plaintiffs also argue that a stay should be awarded in keeping with the requirements of Federal Rule of Appellate Procedure 41(d)(1), which applies to petitions to stay the mandate of a circuit court pending filing of a petition for certiorari. Under Appellate Rule 41(d)(1), the litigant seeking a stay "must show that the petition would present a substantial question and that there is good cause for a stay." The MaineHealth- Genesis Provider Defendants also suggest that the rule provides useful, nonbinding guidance for the exercise of this court's discretion.

The Plaintiffs challenge Maine's vaccine mandate on First Amendment grounds, arguing that the lack of religious exemption violates the Plaintiffs' Free Exercise rights and that Title VII's religious accommodation provisions preempt the vaccine mandate. In their petition for a writ of certiorari, the Plaintiffs seek review of the First Circuit's affirmance of my denial of a preliminary injunction against Maine's vaccine mandate for healthcare workers. Since the Plaintiffs' petition for emergency injunctive relief was denied by the Supreme Court, the Supreme Court also rejected a request for emergency injunctive relief against a similar New York State vaccine mandate. In [that case], as in this case, the circuit court denied injunctive relief.

Accordingly, no circuit court has affirmed a preliminary injunction in a similar case, so there is no split of circuit authority that presents a substantial question for the Supreme Court to resolve. The Supreme Court's decisions have made clear that, at least at the preliminary injunction stage, a majority of the Justices do not view the First Amendment issue presented here as raising a substantial question in need of immediate resolution. Additionally, as to the Title VII claims, the Plaintiffs have not argued that a substantial question exists….

NEXT: Live and Learn

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Trying to divine the Supreme Court's plans. Now I picture Judge Levy as Carnac the Magnificent.

    1. Only if he keeps his opinions in a mayonnaise jar on Funk and Wagnalls' porch.

      1. They've been there since noon today. A child of four can plainly see it.

    2. It will boil down to ACB and Kavanaugh. Roberts will join the libs saying anything for any amount of time restricting civil rights is OK as long as its an "emergency" and of course as long as its a Democrat doing it. These decisions would be quite different if Trump was still president.

      1. Which civil rights do you think are being restricted?

  2. Don't get it, requiring a needle stick, chock full of Messenger RNA and god-knows-what, much more intrussive than restricting my right to kill my baby, who I can always kill or give away at a later date, My Body, My Choice!

    1. Who is "requiring a needle stick"?

      No one is forced to work as a healthcare worker, hence no one is forced to "endure" the needle stick you're concerned with.

      Just as no one is "required to show up at work sober" but airline pilots that don't do so (hopefully) have very short careers so they don't crash planes full of humans into schools full of children.

      You are, of course, free to go mRNA free. However (assuming you can figure out a way to do this except suicide) you won't live very long as mRNA is critical to sustaining human life. Does anyone know how long one would last if they did so - a few very uncomfortable days?

      1. Uhhh, our current Senile POTUS, or ask the thousands of Soldiers/Airmen/Sailors/Marines/Guardians discharged for not getting jabbed.
        Oh, and I've had my 3 Jabs (can you help a brutha out? is it 4 now? 5?, 6? )
        because I have to work, and I'm a Healthcare Worker (ahh, remember when we still had "Doctors" ?) You obviously don't know what you're talking about. Going "messenger" RNA free is as impossible as going "DNA Free" Liberal Arts Major Much?


        1. Going "messenger" RNA free is as impossible as going "DNA Free" Liberal Arts Major Much?

          You of course missed the point...

          You implied there was something bad about the most common vaccines being "chock full of Messenger RNA" as if that meant they was dangerous (which if course means no such thing). So I was challenging you to imagine living (well, dying) without mRNA.

          So, nope, I'm not a Liberal Arts Major (graduate degree in STEM here) but perhaps you could have benefited from a reading comprehension course somewhere in your academic career.

        2. and I'm a Healthcare Worker (ahh, remember when we still had "Doctors" ?)

          Yed. I noted at the time a change in description, though online discussion was still a decade away. "Seeing a doctor" was replaced, for rhetorical reasons, with "health care system".

          It was part of a fraudulent push for newfangled HMOs, which were designed by businessmen, to front-load extra care so as to prevent disease and problems down the road. Sounds great, except it wasn't about that. It was about rhetorically re-skinning too many tests and procedures.

          I recall we abandoned our old family dentist, literally a buddy of my grandfather's, because he wasn't in that restricted system. They X-ray, a technician decides to drill several places the old dentist was fine with, and, I assume, they pass it briefly in front of a real dentist for legal approval.

          They make extra money. The insurance firm does as they are more a clearing house. And everyone sits in fear of lawyers buying yachts because someone whined some unnecessary procedure was unnecessary.

          Anyway, doctors had to be destroyed as a monolithic intellectual bulkhead, as it got in the way of businesspeople and lawyers. Hence the rhetorical shift to "health care systems" instead of "seeing a doctor".

          1. Krayt,
            We still have doctors and they distinguish themselves as "real doctors" to differentiate themselves from mere PhDs (or even worse JDs).
            I have had the Kaiser HMO since the mid-70s. It provides excellent care and keeps the middle man out.

    2. So your concern is that you're ignorant of the vaccine?

      Can you contrast that with the expertise you must have with the other vaccines you've received in your life, since you don't appear to be complaining about those?

  3. Damn. Think of all the patients plaintiffs could have infected if they had gotten that stay.

    1. As even the CDC accepts that the vaccine does not meaningfully affect infectiousness, but merely reduces severity of the infection, the answer is "none".

      Look, you are free to have your opinions, but don't lie about it


        Infections with the Delta variant in vaccinated persons potentially have reduced transmissibility than infections in unvaccinated persons, although additional studies are needed.

        1. Those doctors should have their elementary school teachers review English with them before they give us medical advice.

          1. It's better to take medical advice from doctors than from elementary school teachers.

        2. Infections with the Delta variant in vaccinated persons potentially have reduced transmissibility than infections in unvaccinated persons, although additional studies are needed.

          And monkeys potentially will come flying out of your keister without warning, although additional studies are needed.

          If they didn't need all the weasel words, they shouldn't have used all the weasel words. But they did, so they've said nothing of substance at all.

          1. I don't think you know how science works.

            1. If you think that the above statement from the CDC is an example of science rather than pitch-perfect political posturing, I think it's you that doesn't know how actual science works.

              1. 'additional studies are needed' is not politically helpful. It is, however, scientifically the truth.

                1. It is, however, scientifically the truth.

                  Great. Then at this point scientifically there is no conclusion on the issue one way or the other, and thus no basis whatsoever to make broad sweeping policy decisions concerning it.

                  Strangely, that's not at all what's happening. Which is why they float the say-nothing bullshit placeholders -- for use as political fig leaves.

                  1. Again, science does not work like that.

                    It is not a binary 'we know a thing' vs. 'we know nothing.'

                    And making policy decisions with incomplete information has been the case for the vast majority of policy decisions for time immemorial.

                2. The studies have a pre-determined outcome duhhh

          2. No new goalposts, LoB. The comment I was replying to made a specific statement: As even the CDC accepts that the vaccine does not meaningfully affect infectiousness, but merely reduces severity of the infection

            My reply showed that was wrong.

            Disagree with the CDC all you want, but that does not address that Ben of Houston was wrong.

            1. The comment I was replying to made a specific statement: As even the CDC accepts that the vaccine does not meaningfully affect infectiousness, but merely reduces severity of the infection

              My reply showed that was wrong.

              No, not at all. The plethora of weasel words in the CDC's statement could easily land outside the scope of "meaningfully."

              See, that's the cool thing about weasel words: the speaker can avoid taking a position that may come back to bite them later, while allowing the useful minions to swap in their own definitive misunderstanding of the weasel words and run with that.

            2. No one but you would read it thus.

          3. "although additional studies are needed."

            Translation: We have spent $millions and we still don't know anything useful, but we are experts, so totally trust us to make the best decisions about your healthcare.

            1. I find that grating...and true = your translation

              Their track record does not inspire confidence.

            2. Something being known to a good degree of certainty is still useful, but also more studies are needed.

              That's where we are.

              Quit this stupid attack on expertise by mischaracterizing what they say.

              1. The problem I have is that when I read 'although additional studies are needed', it translates to...'this is our best guess because we just don't know'. And I am perfectly good with that. A lot of crap in life is simply unknowable.

                To me, it would be much more credible for policymakers to admit what they do not know, as opposed to obfuscation to make themselves sound smart and authoritative. This has caused havoc, Sarcastr0. And it is why people ridicule them; rightly, I might add.

                1. The issue is that knowledge is not a step function - it's a continuum of certainty.

                  Saying we're not 100% sure is not the same as we have no idea; do not conflate the two.

                  Maybe that take will end up being wrong; wouldn't be the first time in this pandemic. But replacing scientists with your own layman's take because science is done by fallible people is also making a mistake.

                  (And of course policymakers are not scientists and scientists are not policymakers).

                2. "To me, it would be much more credible for policymakers to admit what they do not know, ..."

                  Indeed. One of the theme's in Tetlock's 'Superforecasters' was that smart people don't say, e.g., 'Russia will/won't invade Ukraine'. They say 'the probability that Russia will invade Ukraine in the next 12 months is XX%'.

                  Chemists can tell you 'if you mix X grams of A with Z grams of B, the resulting solution will turn blue, have a pH of 7.29, and the temp will rise by 11.3 degrees'. Everything else is playing poker - you don't know whether you will win or lose, just that the odds make betting $XX a good bet.

                  Although in fairness to the politicos, a majority of people don't want to hear 'I think this is a good gamble'.

          4. "The problem with the world is the intelligent are full of doubt, but the ignorant so cocksure about themselves."

            "More studies needed" is perfectly reasonable in science. We don't have the advantage of having studied this disease for decades, or since ancient Greece.

            There are brute facts, such as:

            1. Hospitals are being overwhelmed.
            2. Those with severe cases are hopelessly lopsided in favor of not vaccinated.

            Blabber and rhetoric does not account for this.

        3. Sarc has gotten to the point where he is just making shit up and bald face lying. It is sort of sad.

        4. That September notice form CDC data fly directly in the face of the statistics from Israel, that
          1) clearly show the waning of vaccine reduced immunity,
          2) show far more breakthrough infections than can be explained by Biden's "pandemic of the unvaccinated,"
          3) show that booster shots can effectively rein in the surge of infection,
          4) may not be successful in maintaining low case fatality rates.
          There are not enough Omicron cases in Israel to draw conclusions from that variant. But in the EU, boosters have not dented the Omicron infection rate and hospitalizations are still increased by a factor or 3 to 4. While infections have climbed as much as 100x.
          Bottom line:
          I no longer trust CDC pronouncements.

      2. That is my biggest objection to the mandates - the fact that it seems to have a marginal effect on transmission meaning there is no contribution to herd immunity. Back in Spring 2021 when we were told, based upon !!SCienCE!!, that all people had to do was get the vaccine and community spread would disappear I was ambivalent about mandates, especially private companies mandating it. After that all turned out to be fake or just bad science, there is no real moral or ethical reason left to compel an individual to get the vaccine.

        The government's case for a mandate outside of maybe front line healthcare workers was shaky at best when it had the herd immunity argument. Now that is completely blown, it has nothing.

        1. Jimmy,
          It is highly uncertain whether "her immunity" (better herd resistance) will ever be reached for SARS-CoV-2.

      3. As even the CDC accepts that the vaccine does not meaningfully affect infectiousness,

        I bet if you say it a seventeenth time, it will become true.

  4. If conservatives want to be known for three things -- virus-flouting, antisocial behavior; vestigial bigotry; and superstition-based privilege and bigotry -- as the culture war continues, that is their choice.

    And, for the conservative cause, their funeral as modern America continue to improve against their wishes and efforts.

    Carry on, clingers. So far as you betters permit . . .

    1. You keep on saying "as far as you(r) (sp) betters permit..." but have you ever considered that you are being permitted to do what you do now because us your actual betters are letting you do it? If I were you thought I would not take that license for granted though. Your betters are being tempted really hard to cancel it....

      1. I will worry about your caution when I see any initial indication that the liberal-libertarian mainstream is done stomping the conservatives in the American culture war, Jimmy the Dane.

        Until then . . . it's great to be on the winning side!

  5. There's no question we were told that if we just got vaccinated, we would be safe. 99% effective! And no, not 99% effective at warding off the worst effects of getting sick, 99% effective at preventing infection, period. Heck, President Biden just this week said this very thing! Get the vaccine! Get the vaccine! How many times do they have to tell you something?

    Well, I am living, breathing proof that getting the vaccine will do absolutely nothing to prevent the spread of COVID. This information is flat out wrong. I am vaccinated, and got COVID. I have the tests from a lab to prove it. My entire family all got sick within days of each other. It is clearly, obviously infectious, more infectious than even a common cold or other forms of the flu.

    At the very least people should be able to open their own eyes and observe what is happening around them, without resorting to "experts" and "statistics". Call around your social circle. Count the number of people who have come down with flu-like symptoms within the last two weeks, and ask them if they had been vaccinated.

    COVID is utterly widespread. The new variant spreads like crazy. I don't need the CDC to lie to me about vaccines and face masks anymore, I've got all the evidence I need right here where I can feel it in my chest cough.

    1. Congrats on winning the crap lottery. But that doesn't mean the scientific papers are lies and fraud.

      people should be able to open their own eyes and observe what is happening around them, without resorting to "experts" and "statistics".

      This is exactly what kept scientific progress back for centuries. Lay observation with no math to keep you honest will create misperceptions you are very confident about. Good enough for the cave men we evolved as, not good enough for the technical badasses we currently are.

    2. Also, everyone recovered. That is also something vaccines may have helped with.

      I say may, because you may have recovered on your own without the vaccine We will never know the counterfactual.

      Count the number of people who have come down with flu-like symptoms within the last two weeks
      You do realize, that could be the flu as well.

    3. I’m sorry, but if you want to prddle the notion that the existence a single exception somehow disproves statements about medical treatments, you are really wasting your time here and really ought to try your peddling wares someplace where people are stupider and more gillible.

      No medical treatment always works for everyone, and there are always exceptions.

      Consider water. Hydration is often recommended for people who have various conditions. But you think water is always a safe medicine? Hardly. People drown in the stuff. It kills.

      But the existence of drowning deaths no more proves that water is dangerous and should be avoided than the existence of breakthrough COVID cases prove vaccines don’t work.

    4. " proof that getting the vaccine will do absolutely nothing to prevent the spread of COVID. This information is flat out wrong."
      Your case does NOT prove your "absolutely nothing" claim. It only shows that it did not prevent YOU from getting sick, nothing more.

  6. Yawn, the courts have ruled that anything for any amount of time is Ok as far as infringing on civil rights as long as the same people doing the infringing have declared an "emergency".

    So all you need to do to void our form of government is declare a continuous emergency.

    Is a continuous emergency constitutional? Sounds like it would be a good VC article.

  7. I think the District Court is correct that the Supreme Court has clearly signalled in the recent round of cases that a claim of religious exemption from vaccination requirements is going to fail on the merits, and when vaccine mandate laws are upheld by lower courts, cert will not be granted.

    And the reason is obvious: vaccine mandates trump First Amendment religious rights pre-Smith because the state’s interest in mandating them is compelling.

  8. I think at this point it’s become clear that Aliyo, Gorsuch, and Tuomas’ interpretation of Smith essentially transmogrifies Smith into providing much greater protection for religious rights than existing previously, by largely eliminating the pre-Smith concept of a compelling state interest.

    They did this by arguing for two propositions:

    1. If a law has any exceptions at all, it must have an exception for religion.
    2. If a law has any exceptions at all, the interest involved isn’t really compelling.

    It is really the second of these two propositions that transforms Smith from the weakening of religious rights it appeared to be to an enormous underhanded strengthening of them compared to the pre-Smith regime.

    Nearly all laws have exceptions. So when a rule only applies to laws that have no exceptions, it hardly ever applies.

    But prior to the Alito interpretation of Smith, courts never took the view that wxceptions nevate compellling interest. For example, the Court held the tax code is a compelling interest despite tax law being notoriously riddled with exceptions. The yarmulke case applied despite the existence of military headgear, an obvious exception to the general ban on headgear. And so on.

    I disagreed with Smith. And in past years Alito’s approach to weakening Smith seemed reasonable and viable. But as the vaccine cases illustrate, Alito’s interpretation of Smith regularly results not just in striking down laws that would have been upheld pre-Smith, but in turning the concept of compelling state interest into an essentially null term, like intrastate commerce, brittle and easily brusahable aside. The Alito interpretation so weights things on the side of the individual as to risk turning the constitution into a suicide pact.

    That I can’t support. And it’s very clear that Kavanaugh and Barrett can’t support it wither. I suspect for reasons similarity to mine.

    So there’s something clearly very wrong with the Alito interpretation. And I find myself sympathetic to Barrett and Kavanaugh’s concurrence.

    1. Reader Y...Maybe O'Connor's concurrence in Smith should be re-examined. Along with Blackmun's dissent.

Please to post comments