In State of Louisiana v. Becerra, No. 21-30734 (5th Cir. Dec. 15, 2021) (per curiam), the Fifth Circuit denies the federal government’s motion to stay a district court’s preliminary injunction barring enforcement of a COVID-19 vaccination mandate for medical providers receiving Medicare or Medicaid funds. But it scales it back from a fifty-state injunction to only the fourteen states named as plaintiffs.
By way of background, there are multiple federal lawsuits challenging this vaccine mandate. A judge in the Eastern District of Missouri entered a preliminary injunction that governs the ten states that were plaintiffs in that case. A judge in the Northern District of Florida, by contrast, denied a preliminary injunction for the state of Florida. Finally, a judge in the Western District of Louisiana entered a nationwide preliminary injunction of the mandate.
In its December 6, 2021 decision in State of Florida v. Dep’t of Health and Human Servs., No. 21-10498 (11th Cir. Dec. 6, 2021) (blog entry here), the Eleventh Circuit denied a stay of the Florida order pending appeal on a 2-1 vote. The panel majority also predicted, while addressing a mootness challenge, that “the Fifth Circuit would not uphold the nationwide aspect of the [Louisiana] injunction.” It turned out that the panel majority prophesied correctly.
The Fifth Circuit panel begins the opinion by holding that the federal government did not meet the standards for a stay. In particular, the federal government did not establish a likelihood of success on the merits. The Fifth Circuit had recently stayed the COVID-19 vaccination mandate that the Occupational Safety and Health Administration (OSHA) issued for employers of a certain size. BST Holdings, L.L.C. v. OSHA, 17 F.4th 604 (5th Cir. 2021). The same doubts about the regulatory agency’s power to impose such a broad mandate in the absence of express statutory authorization – what it refers to as the “major questions doctrine” – pervade the current case as well.
“The [federal government] 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 Secretary will have the most difficulty overcoming the part of the ruling that applied the ‘major questions doctrine.’”
While denying a stay of the preliminary injunction pending appeal, though, the panel also holds that the Louisiana court’s fifty-state injunction is unwarranted. “The question posed is whether one district court should make a binding judgment for the entire country . . . . 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,” as in immigration cases, or the “concern that patchwork rulings would undermine an injunction limited to certain jurisdictions.” The panel thus stays the nationwide injunction except as to the fourteen states already in the case.