On November 30, 2021, a federal district court in Louisiana granted a nationwide injunction against the implementation of CMS’s Interim Final Rule requiring vaccines (“IFR”) for employees and providers at most health care facilities. The government promptly appealed that injunction. The Fifth Circuit has not yet ruled on the merits but on December 15 denied CMS’s motion to stay the injunction pending appeal as to the 14 states[1] that brought the lawsuit and lifted the stay as to all other states. The Fifth Circuit’s order adds a new degree of uncertainty regarding CMS’s IFR. Now a patchwork of legal rulings bar implementation or enforcement of the IFR in just over half of the states. And while CMS has voluntarily halted implementation or enforcement in the remaining states, how long it remains willing to do so absent a nationwide injunction remains to be seen.
The District Court’s Decision
The main basis for the district court’s nationwide injunction against implementing the mandate was that the 14 plaintiff states were likely to succeed on these arguments:
- There was not good cause for CMS’s failure to undergo notice and comment rulemaking.
- CMS lacked statutory authority to issue such a sweeping regulation.
- CMS skirted its statutory obligations to (1) consult appropriate state agencies before altering the Medicare conditions of payment, (2) refrain from exercising supervision or control over the situation, tenure or compensation of health care employees, and (3) conduct a regulatory impact analysis when it publishes a proposed rule.
- The mandate is arbitrary and capricious for various reasons, including that it is likely to harm rather than protect patients by exacerbating the health care staffing shortage.
- The Constitutional limits on federal power and administrative power, in particular, do not permit the mandate.
Reasoning of the Fifth Circuit
The Fifth Circuit denied CMS’s motion to stay the injunction pending appeal with respect to the 14 plaintiff states. But the court lifted the injunction in place in all other states.
In denying the request to stay the injunction as to the 14 plaintiff states, the court focused on just one of the many legal arguments that the district court had considered likely to succeed—the “major question” doctrine, which is that Congress must “speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” The Fifth Circuit acknowledged arguments that might distinguish the CMS mandate from OSHA’s vaccine-or-test mandate and make the CMS mandate more likely to be ultimately upheld on the merits. Even so, the court then stated that CMS had to show more than “a close call” to merit a stay of the injunction.
The Fifth Circuit stayed the injunction as to all states that were not parties to the Louisiana litigation, reasoning that nationwide injunctions by district courts are disfavored and must be justified by compelling circumstances requiring nationwide applicability. Absent such circumstances, each jurisdiction should be allowed to litigate the matter for itself, thereby fostering the robust development of all relevant arguments. The lifting of an injunction that was nationwide in scope makes it possible that CMS may attempt implementation of its vaccine mandate in those states where it is not currently prohibited from doing so. This possibility seems remote, in part because CMS has declared its intention to await the outcome of the litigation before proceeding to implement and would risk further defeat if it now reverses course and initiates a piecemeal, state-by-state course of implementation.
Patchwork of Injunctions
Though the Fifth Circuit lifted the nationwide injunction, that does not mean that CMS could immediately implement the IFR in all other states because actions pending in other courts impact CMS’s options.
Eleven states have separately sued and received preliminary injunctions on CMS’s IFR. On November 29, 2021, the Eastern District of Missouri enjoined CMS from implementing and enforcing the IFR in 10 states. This injunction is applicable to the 10 states[2] that are parties to this lawsuit. This injunction was promptly appealed to the Eighth Circuit and a motion to stay the injunction was denied on December 13, 2021. Similarly, on December 3, 2021, the Northern District of Texas issued a stay by the agreement of both the state of Texas and the federal government pending actions from other courts addressing this mandate. In light of the Fifth Circuit’s recent decision, the court issued an order granting this injunction on the same day.
By contrast, Florida sought a preliminary injunction but failed to receive one in the district court or Eleventh Circuit.
Given the inconsistency in court determinations, the agency’s voluntary pause in implementation remains one of the most important factors in a complicated analysis for health care providers. Though it has not yet indicated any intention to back away from the voluntary pause, it is not unheard of for CMS to actively implement and enforce policies under active litigation—complying with injunctions in jurisdictions subject to court orders and moving forward in those jurisdictions not impacted by the injunctions.
Practical Takeaways
As anticipated, the litigation and appeals regarding CMS’s IFR continue to create conflicting and fast-moving challenges for health care providers. While the courts continue to review CMS’s IFR, all eyes will be on the agency’s guidance and determination about whether to maintain the voluntary pause in implementation. Due to the rapidly changing environment concerning these vaccine mandates, please consult counsel or investigate this issue independently before implementing policies or decisions. For more information on any of these vaccination requirements, please contact:
- Drew Howk at ahowk@wp.hallrender.com or (317) 429-3607;
- Jon Rabin at jrabin@wp.hallrender.com or (248) 457-7835;
- Jessica Biondo at jbiondo@wp.hallrender.com or (248) 457-7851;
- Brian Sabey at bsabey@wp.hallrender.com or (720) 290-4919; or
- Your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer an individual’s questions that may constitute legal advice.
