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 v. 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
No. 21-30734
United States Court of Appeals for the Fifth Circuit
December 15, 2021
Before SOUTHWICK, GRAVES, and COSTA, Circuit Judges.
Appeal from the United States District Court for the Western District of Louisiana, USDC No. 3:21-CV-3970
The Secretary of the Department of Health and Human Servicеs and other federal government defendants move to stay a district court‘s
We DENY the motion insofar as the ordеr 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 rеquest 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 irreparablе 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 thе 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 succеss.
The district court held that the Secretary‘s decision to enter the vaccine regulatory space for the first time implicates what somе courts and commentators have called the “major questions doctrine,” though apparently not (yet) so designated in a majority opiniоn for the Supreme
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 havе brought this suit. Principles of judicial restraint control here. Other courts are considering these same issues, with several courts already and inconsistеntly 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 nоt 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 cоncern that “a geographically-limited injunction would be ineffective because DAPA beneficiaries would be free to move among states.” Id. at 187-88.
Justice Gorsuch recently critiqued the frequency of the imposition of nationwide injunctions. Such injunctions аt 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 vacсine 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.