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

Today, the U.S. Court of Appeals of the Fifth Circuit affirmed a district judge’s injunction against Biden Administration COVID-19 vaccination mandate for health-care workers. It also narrowed its scope to include plaintiff jurisdictions. It appears to be a fair decision.

The issue is 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.]A number of lawsuits were filed against the rule. In Louisiana, a court issued a nationwide preliminary injunction. The court’s reasoning for ordering nationwide relief wasn’t supported by Fifth Circuit precedent, as I have already noted.

The Fifth Circuit’s opinion today, per curiam for Judges Southwick and Graves, upheld the decision of the district court to issue a preliminary order, but found no grounds for a nationwide one.

The opinion

District court stated a variety of reasons why it had to stop the rule. This is especially in the light of this court’s recent precedential opinion. BST Holdings L.L.C. v. OSHA, 17 F.4th 604 (5th Cir. It appears the Secretary will face the greatest difficulty in overcoming the portion of the ruling which applied the “major question doctrine.” In assessing whether Secretary is likely to succeed, we therefore focus on this issue.

District court ruled that Secretary’s entry into the vaccine regulatory area for the first-time implicates “major Questions doctrine” as some courts and commentators call it. However, the Supreme Court has not yet designated this term in its majority opinion. This new doctrine is not a novel one, but rather a label that courts use to analyze federal agency assertions of authority. The Supreme Court didn’t give deference in 1996 to Food and Drug Administration’s decision that tobacco regulation was within its implicit authority. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159–60 (2000).

This doctrine was part of the reason our court recently stayed the COVID-19 vaccine mandate that the Occupational Safety and Health Administration (“OSHA”) had issued to employers with a specific size. BST Holdings; 17 F.4th, 617 See also Alabama Ass’n of Realtors, v. Department of HHS, 141 S. Ct. 2485, 2489 (2021) (CDC’s eviction moratorium is being held citing the necessity for Congress to “to speak clearly” when authorizing an agent to exercise power of “vast political and economic significance” (quoting Brown & Williamson(see 592 U.S., 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. This distinction (or other) is not clear. BST HoldingsThis appeal is ultimately decided by the panel. However, the initial stay was granted.
It takes more than just a good call. It is impossible to say whether the Secretary made an impressive showing on merits. . . .

Although we disagree with the general stay, we consider whether or not the preliminary injunction should be extended beyond the fourteen states who brought the suit. Here are the principles of judicial control. . . .

This question asks whether the one-district court can issue a binding judgement for the whole country. We have sometimes answered this question positively. In one case, for example, we granted nationwide injunctions. Texas v. United States, 809 F.3d 134, 188 (5th Cir. 2015). However, this decision does not mean that injunctions nationwide are mandatory or the norm. The “circumstances” must justify the application of injunctive relief. Italics. 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.” Italics. at 187–88.

This district court did not find any reason to issue an injunction outside of the fourteen States who brought this case. The court stated that the CMS Mandate is “widely applicable” and that a nationwide injunction was necessary to ensure uniformity. It also noted that there are still unvaccinated workers living in states that do not have the CMS mandate. The Texas constitutional uniformity principle is not applicable to this case. This could be due to the concern about patchwork rulings affecting an injunction only intended for certain jurisdictions.

Justice Gorsuch recently criticised the widespread impositions of nationwide injunctions. Sometimes, such injunctions may be “rushed”, high-stakes, and lack of information decisions. However, it is possible to obtain more equitable relief.

Although the traditional system in which lower courts only issue interlocutory relief to parties involved may be problematic, litigants and courts might have to accept interim uncertainty regarding a rule’s fate. This will allow them to proceed slowly and wait for this Court to speak on their own. However, this system permits multiple judges to weigh in after thoughtful deliberation. This allows for the exchange of opposing views which aids this Court’s decisionmaking process.

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

The vaccine rule is a matter of critical importance currently being litigated across the country. This issue can be resolved by “the airing and discussing of the competing points” in our sister circuits. See the id.We are unable to predict the outcome of the appeal. However, like the issues we have before us, it is possible to assume that the Secretary will prevail and limit the reach of the injunction.