20 F.4th 260
5th Cir.2021Background
- The Secretary of HHS sought a stay of a district court’s nationwide preliminary injunction that barred enforcement of the CMS COVID-19 staff-vaccination requirement for Medicare- and Medicaid-certified providers (hospitals, nursing homes, home-health agencies, hospices, etc.).
- The district court enjoined the rule nationwide; the federal defendants appealed and moved to stay that injunction pending appeal.
- The Fifth Circuit panel evaluated the standard four-part stay test (likelihood of success, irreparable injury, harm to others, public interest), treating likelihood of success as the most significant factor.
- The panel focused on the “major questions doctrine” as the principal obstacle to the Secretary’s showing of likely success, noting parallels to this court’s BST Holdings decision about the OSHA vaccine-or-test rule.
- The court denied the stay as to the 14 plaintiff states (so the injunction remains in those states) but granted a stay of the injunction’s application elsewhere, concluding the nationwide injunction lacked adequate justification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a stay of the district court's nationwide preliminary injunction should issue pending appeal | The injunction was proper and should remain in effect nationwide to protect residents and workers in all states | The Secretary will likely succeed on appeal and is entitled to a stay while the appeal proceeds | Denied as to the 14 plaintiff states; granted as to other jurisdictions (stay of injunction elsewhere) |
| Whether the major questions doctrine bars CMS’s vaccine mandate authority | The doctrine applies and the agency exceeded statutory authority, supporting the injunction | The CMS rule is distinguishable (Spending Clause basis, targeted health-care settings, congressional provisions) and thus not subject to the same constrainsts as OSHA | Court concluded Secretary did not make a strong showing of likely success; major-questions concerns weigh against a stay |
| Proper scope of preliminary injunctive relief (nationwide vs. limited) | Nationwide injunction needed for uniformity and broad protection of unvaccinated workers | Nationwide relief was overbroad; equitable relief should be limited to parties/regions before the court | Panel found district court gave little justification for nationwide relief and predicted the Secretary likely to prevail in narrowing the injunction |
| Role of equitable/stay factors (irreparable harm, public interest, status quo) | Injunction necessary to prevent harm and serve public interest | Enforcement of rule protects patients and public health; agency would be harmed without a stay | Court said these factors could not overcome the weak showing on the merits and noted preserving the pre-rule status quo weighs against issuing a stay |
Key Cases Cited
- Veasey v. Perry, 769 F.3d 890 (5th Cir. 2014) (sets out stay factors and emphasizes likelihood of success and irreparable injury)
- Nken v. Holder, 556 U.S. 418 (2009) (governing standard for stays pending appeal)
- BST Holdings, L.L.C. v. OSHA, 17 F.4th 604 (5th Cir. 2021) (applied major-questions scrutiny to OSHA vaccine-or-test rule)
- FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) (refused agency deference where asserted regulatory authority was novel and of vast significance)
- Alabama Ass'n of Realtors v. Dep't of HHS, 141 S. Ct. 2485 (2021) (stayed CDC eviction moratorium; emphasized need for clear congressional authorization for major questions)
- Department of Homeland Sec. v. New York, 140 S. Ct. 599 (2020) (concurrence criticizing frequent nationwide injunctions and urging narrower, deliberative development)
- Gundy v. United States, 139 S. Ct. 2116 (2019) (discussion of major-questions concerns in dissent)
- Texas v. United States, 809 F.3d 134 (5th Cir. 2015) (example where nationwide injunction was justified on uniformity grounds)