Vaccine mandates

Fifth Circuit Narrows Injunction Against CMS Vaccine Mandate for Medicaid and Medicare Providers

The district court's justification for a nationwide injunction was decidedly lacking.

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Today the U.S. Court of Appeals for the Fifth Circuit affirmed a district court injunction against the Biden Administration's COVID-19 vaccine mandate for health care workers, while narrowing the scope of the injunction to the plaintiff jurisdictions. This seems like a reasonable decision.

At issue in Louisiana v. Becerra is an interim final rule promulgated by the Center for Medicare and Medicaid Services (CMS) mandating that Medicare and Medicaid service providers require their workers to obtain COVID-19 vaccines. [For background on this rule, see my posts here and here.] Several suits were filed against this rule, and one led a district court in Louisiana to impose a nationwide preliminary injunction against the rule. As I noted here, the court's rationale for ordering nationwide relief was quite thin and was not supported by the relevant Fifth Circuit precedent.

Today's Fifth Circuit opinion, a per curiam for Judges Southwick, Graves, and Costa, upheld the district court's decision to issue a preliminary injunction, but concluded that there was no basis for a nationwide injunction.

From the opinion:

The district court cited a number of reasons for enjoining the rule. Especially in light of a recent, precedential opinion from this court, see BST Holdings, L.L.C. v. OSHA, 17 F.4th 604 (5th Cir. 2021), it appears that the Secretary will have the most difficulty overcoming the part of the ruling that applied the "major questions doctrine." We thus focus on that issue in assessing whether the Secretary has made a strong showing of likely success.

The district court held that the Secretary's decision to enter the vaccine regulatory space for the first time implicates what some courts and commentators have called the "major questions doctrine," though apparently not (yet) so designated in a majority opinion for the Supreme Court. It appears to us not so much a new doctrine but a new label for courts' method of analyzing federal agencies' novel assertions of authority. For example, the Supreme Court did not give deference to the Food and Drug Administration's 1996 decision that it had implicit authority under its governing statutes to regulate tobacco. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159–60 (2000).

Our court relied in part on this doctrine in recently staying the COVID-19 vaccination mandate the Occupational Safety and Health Administration ("OSHA") issued for employers of a certain size. BST Holdings, 17 F.4th at 617; see also Alabama Ass'n of Realtors v. Department of HHS, 141 S. Ct. 2485, 2489 (2021) (staying CDC's eviction moratorium based in part on the need for Congress "to speak clearly when authorizing an agency to exercise powers of 'vast economic and political significance'" (quoting Brown & Williamson, 592 U.S. at 160)). The Secretary identifies meaningful distinctions between its rule for Medicare and Medicaid-funded facilities and the broader OSHA rule — the statutory authority for the rule is different; Medicare and Medicaid were enacted under the Spending Clause rather than the Commerce Clause; and the targeted health care facilities, especially nursing homes, are where COVID-19 has posed the greatest risk. It is a close call whether these distinctions (or others) of BST Holdings will ultimately convince the panel hearing this appeal. Nonetheless, the first stay factor requires more than showing a close call. We cannot say that the Secretary has made a strong showing of likely success on the merits. . . .

Though we deny the stay generally, we also consider whether the preliminary injunction should remain in effect beyond the 14 states that have brought this suit. Principles of judicial restraint control here. . . .

The question posed is whether one district court should make a binding judgment for the entire country. At times, we have answered the question affirmatively. For example, we allowed nationwide injunctions in an immigration case. See Texas v. United States, 809 F.3d 134, 188 (5th Cir. 2015). That decision, though, does not hold that nationwide injunctions are required or even the norm. As is true for all injunctive relief, the scope of the injunction must be justified based on the "circumstances." Id. That justification existed in Texas because of the constitutional command for "uniform" immigration laws and a concern that "a geographically-limited injunction would be ineffective because DAPA beneficiaries would be free to move among states." Id. at 187–88.

The district court here gave little justification for issuing an injunction outside the 14 States that brought this suit. It stated that "due to the nationwide scope of the CMS Mandate, a nationwide injunction is necessary due to the need for uniformity" and noted that "there are unvaccinated workers in other states who also need protection." Lacking is either the constitutional uniformity principle in Texas or that case's concern that patchwork rulings would undermine an injunction limited to certain jurisdictions.

Justice Gorsuch recently critiqued the frequency of the imposition of nationwide injunctions. Such injunctions at times can constitute "rushed, high-stake, low-information decisions," while more limited equitable relief can be beneficial:

The traditional system of lower courts issuing interlocutory relief limited to the parties at hand may require litigants and courts to tolerate interim uncertainty about a rule's final fate and proceed more slowly until this Court speaks in a case of its own. But that system encourages multiple judges and multiple circuits to weigh in only after careful deliberation, a process that permits the airing of competing views that aids this Court's own decisionmaking process.

Department of Homeland Sec. v. New York, 140 S. Ct. 599, 600 (2020)
(Gorsuch, J., concurring in the grant of a stay).

This vaccine rule is an issue of great significance currently being litigated throughout the country. Its ultimate resolution will benefit from "the airing of competing views" in our sister circuits. See id. Though here too, as with the other issues before us, we are not in a position to make definitive pronouncements about the outcome of this appeal, we do predict that the Secretary is likely to prevail in limiting the scope of the injunction.