United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
___________ FILED
December 15, 2021
No. 21-30734 Lyle W. Cayce
___________ Clerk
State of Louisiana; State of Montana; State of
Arizona; State of Alabama; State of Georgia; State of
Idaho; State of Indiana; State of Mississippi; State of
Oklahoma; State of South Carolina; State of Utah;
State of West Virginia; Commonwealth of Kentucky;
State of Ohio,
Plaintiffs—Appellees,
versus
Xavier Becerra, Secretary, U.S. Department of Health
and Human Services; United States Department of
Health and Human Services; Chiquita Brooks-Lasure;
Centers for Medicare and Medicaid Services,
Defendants—Appellants.
______________________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:21-CV-3970
______________________________
Before Southwick, Graves, and Costa, Circuit Judges.
Per Curiam:
The Secretary of the Department of Health and Human Services and
other federal government defendants move to stay a district court’s
No. 21-30734
nationwide, preliminary injunction that bars enforcement of one of the
federal COVID-19 vaccination mandates. The enjoined mandate applies to
the staff of many Medicare- and Medicaid-certified providers such as
hospitals, long-term care facilities, home-health agencies, and hospices.
We DENY the motion insofar as the order applies to the 14 Plaintiff
States. We GRANT a stay as to the order’s application to any other
jurisdiction. Briefly, we will explain.
When analyzing a request to stay a district court’s preliminary
injunction, we are to consider the following factors:
(1) whether the stay applicant has made a strong showing that
he is likely to succeed on the merits; (2) whether the applicant
will be irreparably injured absent a stay; (3) whether issuance
of the stay will substantially injure the other parties interested
in the proceeding; and (4) where the public interest lies.
Veasey v. Perry, 769 F.3d 890, 892 (5th Cir. 2014) (quoting Nken v. Holder,
556 U.S. 418, 426 (2009)). Likelihood of success and irreparable injury to
the movant are the most significant factors. Id.
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
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Court. 1 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.
1
Able researchers for this panel have discovered that this doctrinal label has been
used only twice at the Supreme Court in merits opinions on a case — once in a concurrence
and the other in a dissent. Department of Homeland Sec. v. Regents of the Univ. of Cal., 140
S. Ct. 1891, 1925 (2020) (Thomas, J., concurring); Gundy v. United States, 139 S. Ct. 2116,
2141–42 (2019) (Gorsuch, J., dissenting).
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The other three factors for a stay — injury to the movant, injury to the
opponent, and the public interest — are important but, regardless of the
outcome of analyzing them, they will not overcome our holding that the
merits of the injunction will not likely be disturbed on appeal. That is
especially so because preserving the status quo “is an important” equitable
consideration in the stay decision. Dayton Bd. of Educ. v. Brinkman, 439 U.S.
1358, 1359 (1978)). Here, the Secretary’s vaccine rule has not gone into
effect.
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. Other courts
are considering these same issues, with several courts already and
inconsistently ruling. Compare Florida v. Department of HHS, — F.4th —,
2021 WL 5768796 (11th Cir. Dec. 6, 2021) (declining to enjoin rule after
district court refused to do so), with Missouri v. Biden, — F. Supp. 3d —, 2021
WL 5564501 (E.D. Mo. Nov. 29, 2021) (enjoining rule in the ten plaintiff
states). In addition, the many states that have not brought suit may well have
accepted and even endorsed the vaccination rule.
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.
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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.
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IT IS THEREFORE ORDERED that the opposed motion for
stay of the district court’s preliminary injunction order pending appeal is
DENIED insofar as the order applies to the 14 Plaintiff States. A stay is
GRANTED as to the order’s application to any other jurisdiction.
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