United States Court of Appeals For the First Circuit
No. 24-1283
ALICIA LOWE; DEBRA CHALMERS; JENNIFER BARBALIAS; GARTH BERENYI; NICOLE GIROUX; ADAM JONES; NATALIE SALAVARRIA,
Plaintiffs, Appellants,
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,
Defendants, Appellees,
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,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. John D. Levy, U.S. District Judge]
Before
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.
January 17, 2025 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longer enforced as of July 12, 2023, and repealed by amendment of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 10-144-264
Me. Code R. § 2 (amended Sept. 5, 2023) (requiring designated
healthcare facilities to "require for all employees who do not
exclusively work remotely a Certificate of Immunization, or Proof
of Immunity" against COVID-19). The appellants are Maine
healthcare workers who do not exclusively work remotely and who
were terminated from their employment at covered healthcare
facilities after they refused to comply with the COVID-19 vaccine
mandate based on their religious beliefs.
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 First and Fourteenth Amendments of the
United States Constitution. On the same day, they filed a motion
for a temporary restraining order and a preliminary injunction,
which were denied. The appellants appealed the denial of
- 3 - preliminary injunctive relief.1 On October 19, 2021, this court
affirmed the district court's denial of a preliminary injunction,
Does 1-6 v. Mills, 16 F.4th 20, 37 (1st Cir. 2021), and the Supreme
Court denied the appellants' subsequent application for emergency
injunctive relief, Does 1-3 v. Mills, 142 S. Ct. 17, 17 (2021).
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 First Amendment
Free Exercise and Fourteenth Amendment Equal Protection Clause
claims for declaratory and injunctive relief against the
Commissioner of the Maine Department of Health and Human Services
("MDHHS") and the Director of the Maine Center for Disease Control
and Prevention ("MCDC"). Lowe v. Mills, 68 F.4th 706, 709, 725
(1st Cir. 2023).
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.
1 They also sought an emergency injunction pending appeal in this court, which was denied the following day. The appellants appealed to the Supreme Court, which also denied their emergency application for injunctive relief. See Does 1-3 v. Mills, No. 21A83, 2021 WL 11710854 (U.S. Oct. 19, 2021).
- 4 - 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 that covered healthcare providers
require staff vaccination against COVID-19. The federal public
health emergency ended on May 11, 2023, as planned. Because the
Maine public health emergency was designed to be in effect through
- 5 - the duration of the federal public health emergency, it too ended
on May 11, 2023. This court published its opinion on May 25, 2023,
reinstating the claims discussed. Lowe, 68 F.4th at 706. CMS
formally withdrew its COVID-19 vaccination requirement on June 5,
2023. See Medicare and Medicaid Programs; Policy and Regulatory
Changes to the Omnibus COVID-19 Health Care Staff Vaccination
Requirements, 88 Fed. Reg. 36,485 (June 5, 2023) (codified at 42
C.F.R. pts. 416, 418, 441, 460, 482-86, 491, 494).
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
- 6 - 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 planning for the end of the public
- 7 - health emergency in early 2023, by "identifying programs and
services that would be ending or transitioning back to pre-COVID
standards." "Around the end of May 2023 and beginning of June
2023," MDHHS and MCDC also conducted a review of available
scientific data and research regarding COVID-19 risks in
healthcare settings as part of an evaluation of state rules and
policies, including the state's COVID-19 vaccine requirement for
healthcare workers. "This review was triggered by the end of the
federal public health emergency, the announcement that CMS would
be rescinding its COVID-19 vaccine requirement, and changed
circumstances regarding COVID-19 variants, vaccination[] rates,
and disease prevalence." The MDHHS Declaration contained detailed
information and data supporting the repeal, including, inter alia,
changes and developments as to new COVID-19 variants, antiviral
treatments, antigen tests, further vaccine developments,
vaccination rates, and hospitalization rates. It stated that, on
the basis of that information, MDHHS "concluded that it would no
longer be necessary to require that [designated healthcare
facilities] ensure their employees are vaccinated against COVID-
19." The MDHHS Declaration contained two pages of exhibits: a
graph of COVID-19 hospitalization data between late 2021 and late
- 8 - 2023, and a graph of daily COVID-19 deaths from January 2022 to
September 2023.2
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 Me. Rev. Stat. Ann. tit. 22,
§ 802. The district court concluded that the appellants had
mounted "an as-applied challenge to the tandem operation of the
pre-repeal regulation and statute, but no more." Lowe v. Mills,
718 F. Supp. 3d 69, 75 (D. Me. 2024).3 The statute merely
2 The MDHHS Declaration also stated 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. . . . [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.
3 The district court concluded that the appellants treated
- 9 - authorizes MDHHS to promulgate by regulation requirements, but it
does not specify the diseases or itself mention COVID-19, and it
authorizes only certain exemptions. See Me. Rev. Stat. Ann. tit.
22, § 802(4-B).
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 would redress injuries
that arise from an actual case or controversy." Lowe, 718 F. Supp.
3d at 79. The district court further held that neither the
"voluntary cessation" nor the "capable of repetition yet evading
review" exceptions to the mootness doctrine applied. Id. at 79-
82.
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
the governor's August 21, 2021 announcement as the challenged mandate, which referred to the state regulation. Lowe v. Mills, 718 F. Supp. 3d 69, 75 (D. Me. 2024). Moreover, the district court noted that the regulation rather than the statute imposed the challenged COVID-19 vaccination requirement, and the statute's "exemptions only take effect in this context when the regulation is enforced." Id. at 76. The district court further concluded that no facial challenge existed because the appellants challenged only the statute's application to COVID-19 vaccinations, and not the other vaccines required under the regulation. Id. at 76-77.
- 10 - 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 Federal Rule of Civil Procedure 15(d). Id.
- 11 - 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, Me. Rev. Stat. Ann. tit. 22, § 802. Appellants' challenge
was only to that portion of the regulation, 10-144-264 Me. Code R.
§ 2(A), concerning COVID-19 vaccinations which was in existence
from August 12, 2021 to September 5, 2023. The statute itself
says nothing about a COVID-19 mandate and merely authorizes MDHHS
to promulgate vaccination requirements with certain exceptions.
See Me. Rev. Stat. Ann. tit. 22, § 802(4-B). Indeed, in their
amended complaint, the appellants describe the target of their
challenge as "the Governor's COVID-19 Vaccine Mandate," the very
term that they use elsewhere in the amended complaint to identify
the emergency rule -- but not the enabling statute -- that added
COVID-19 to the list of required vaccinations in Chapter 264.
Further, the appellants have not challenged the regulation's
still-existing vaccination requirements for measles, mumps,
rubella, varicella, hepatitis B, and influenza. See 10-144-264
Me. Code R. § 2(A); Lowe, 718 F. Supp. 3d at 76-77. The appellants
have only ever challenged the COVID-19 vaccination requirement, a
fact that they do not dispute on appeal. Appellants may not on
- 12 - appeal recharacterize their challenge as a facial attack on the
statute.
B. Appellants' claims are moot
"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 U.S. Const.
art. III, § 2). "The doctrine of mootness enforces the mandate
'that an actual controversy must be extant at all stages of the
review, not merely at the time the complaint is filed.'" Mangual
v. Rotger-Sabat, 317 F.3d 45, 60 (1st Cir. 2003) (quoting Steffel
v. Thompson, 415 U.S. 452, 459 n.10 (1974)). "[A] case is moot
when the issues presented are no longer live or the parties lack
a legally cognizable interest in the outcome . . . . [or] the court
cannot give any effectual relief to the potentially prevailing
party." Bayley's Campground, Inc. v. Mills, 985 F.3d 153, 157
(1st Cir. 2021) (first alteration in original) (quoting Town of
Portsmouth v. Lewis, 813 F.3d 54, 58 (1st Cir. 2016)); see also
ACLU of Mass. v. U.S. Conf. of Cath. Bishops, 705 F.3d 44, 52-53
(1st Cir. 2013) (dismissal is required where "events have
- 13 - transpired to render a court opinion merely advisory" (quoting
Mangual, 317 F.3d at 60)).
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
- 14 - 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
- 15 - 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)).
- 16 - 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 re-
institute 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
- 17 - will impose a similar testing program.").4 The regulation was
geared to the risks from the SARS-CoV-2 virus as it existed at the
time the regulation was in force, and the developments since
regarding vaccination rates (including vaccination rates for
healthcare workers), circulating variants, disease prevalence, and
available tests, treatments, and new vaccines have all reduced
those risks. As to vaccination rates, as of October 31, 2021,
COVID-19 vaccination rates for healthcare workers in Maine in
various workplaces ranged from 92.6 percent to 98.1 percent.
Between May 28, 2023 and June 30, 2023, 93.3 percent of all
4 This case is easily distinguishable from Bayley's Campground, in which this court determined that the challenge there to a COVID-19 restriction was not moot because the state defendants had not met their burden of showing that the allegedly wrongful behavior could not reasonably be expected to recur. See 985 F.3d 153, 157-58 (1st Cir. 2021). In Bayley's Campground, the challenged COVID-19 restriction had not been rescinded entirely, as here, but merely replaced with a less strict version, and indeed, without the check of a rulemaking process like that required of MDHHS under Me. Rev. Stat. Ann. tit. 5, § 8052, the state could have unilaterally done so as the "dynamic" public health conditions evolved. See id. at 156-57; Me. Rev. Stat. Ann. tit. 37-B, § 742. Moreover, the time that elapsed between the challenged restriction's implementation and removal was about two months; in contrast, the repeal of the regulation at issue here reflects enduring changes in the COVID-19 pandemic over the course of nearly two years. See id. at 155-56. The Bayley's Campground court also observed that the state defendant "has not denied that a spike in the spread of the virus in Maine could lead her to impose a self-quarantine requirement just as strict as [the challenged measure]." Id. at 157. Here, the state defendants have declared that "it is highly unlikely that [MDHHS] will seek to impose COVID-19 vaccination requirements on [designated healthcare facilities] in the future," a prediction corroborated by lasting trends in disease prevalence, vaccine availability and acceptance, and treatment efficacy.
- 18 - 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
- 19 - 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 these data support MDHHS' conclusion that
it was "highly unlikely" they would ever promulgate an equivalent
COVID-19 vaccine mandate regulation.
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, "[t]hat the
Governor has the power to issue executive orders cannot itself be
enough to skirt mootness, because then no suit against the
government would ever be moot. And we know some are." 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
- 20 - 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
- 21 - 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 numeric
shifts, not "dramatic" increases: three deaths in July 2023
relative to eight deaths in August 2023, and thirty-one
- 22 - hospitalized COVID-19 patients per day in July 2023 relative to
forty-four in August 2023.5
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
5 The appellants argue that an out-of-circuit case, Health Freedom Def. Fund, Inc. v. Carvalho, 104 F.4th 715 (9th Cir. 2024), supports their argument. Not so. In that case, the defendants had "withdraw[n] and reinstat[ed]" their COVID-19 vaccination policies directly following litigation events multiple times without a clear public health rationale. Id. at 719-22. And, in denying the defendants a "presumption of regularity" to which they would otherwise have been entitled, the court relied on specific comments made by defendants that "confirm[ed] that [the] policy rescission aimed to avoid litigation." Id. at 723. There was also no evidence that the decision to repeal the mandate tracked with any change in federal regulations or guidance regarding COVID-19, as there is here. See id. at 721 n.2 (policy withdrawal occurred in September 2023).
- 23 - 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
- 24 - . . . 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
6 Appellants argue that the mandate was inherently transitory because the state defendants admitted in the MDHHS declaration "that the public health emergency upon which the Vaccine Mandate was purportedly based, and their consideration of compulsory
- 25 - 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
vaccination programs, were transitory and subject to change." This argument fails. The MDHHS declaration merely describes reviewing COVID-19 policies in light of evolving data and federal guidance and does not establish that the vaccine mandate was definitionally temporary.
- 26 - 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 to amend the complaint for abuse of discretion.
See, e.g., Palmer, 465 F.3d at 30. The district court's decision
will be affirmed "so long as the record evinces an adequate reason
for the denial," such as "undue delay, bad faith, futility, [or]
the absence of due diligence on the movant's part." Id. at 30
(first quoting Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 58
(1st Cir. 2006)). The district court did not abuse its discretion
in holding that "justice does not require permitting the Plaintiffs
to further amend the Amended Complaint to drastically broaden the
scope of their claims" by creating a previously-nonexistent facial
challenge to the statute.
- 27 - The district court also did not abuse its discretion in
denying the appellants leave to file supplemental pleadings under
Federal Rule of Civil Procedure 15(d). The motion sought to amend
to change the attack to one on all aspects of the regulation and
to bring a facial attack on the statute. The statute and the
regulation preexisted the filing of the suit. Rule 15(d) permits
courts to allow supplemental pleadings to add transactions,
occurrences, or events that happened after the date of the
pleading. See Fed. R. Civ. P. 15(d). The appellants filed the
amended complaint on July 11, 2022, never filed a separate motion
for leave to amend, and never identified any relevant subsequent
transactions, occurrences, or events that would prevent mootness.
We affirm the district court's dismissal of this suit as
moot and the denial of the motion to amend.
- 28 -