Filed Date: Nov. 15, 2021
Closed Date: Dec. 2, 2022
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COVID-19 Summary: In this case, several states sued to block the federal vaccine mandate which required Medicare- and Medicaid-certified providers and suppliers to become vaccinated prior to December 6, 2021 (the CMS mandate). The judge granted the preliminary injunction on November 30,2021, and issued a nationwide injunction prohibiting the CMS mandate. 571 F.Supp.3d 516. The defendants appealed and requested the lower court issue a stay pending appeal, which the court denied the same day. The defendants appealed to the Fifth Circuit and moved for a stay of the injunction, which was denied in part—only for the states party to the case. The defendants then appealed to the Supreme Court for a stay of the preliminary injunction pending appeal, which was granted on January 13, 2022. On remand in the district court, the case was ultimately dismissed with prejudice on November 3, 2022 but still may be appealed.
This case is about whether the federal government can require Medicare- and Medicaid-certified providers and suppliers to receive a COVID-19 vaccination. President Joe Biden announced in September 2021 that the Department of Health and Human Services (HHS) would issue a rule requiring vaccination for all employees in Medicare- and Medicaid- participating facilities. The Centers for Medicare and Medicaid (CMS), which is a component of HHS, issued a rule to that effect. On November 15, 2021, the States of Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, and West Virginia sued Xavier Becerra (the Secretary of HHS), HHS, CMS, and Chiquita Brooks-Lasure (Administrator of CMS) in the U.S. District Court for the Western District of Louisiana.
The states presented several statutory, procedural, and constitutional claims for relief. They argued that CMS violated the Administrative Procedure Act (APA) by acting in excess of its statutory authority, arguing that CMS lacks the power to mandate vaccinations and that in doing so exceeded its grant of authority by the Social Security Act. According to the states, this overstep implicated major constitutional questions such as the Nondelegation Doctrine, the Tenth Amendment, and the Spending Clause. The states also claimed that the CMS violated the Congressional Review Act—which requires all rules be submitted to Congress, giving it an opportunity to disapprove of the rule—and that CMS’s invocation of the “good cause” exception was inappropriate. They further argued that the rule was arbitrary and capricious and therefore in violation of the APA. The states contended CMS failed to engage in reasoned decision-making and arbitrarily failed to account for the economic impacts of the mandate on the healthcare industry and the costs to the states and instead simply followed the directions of the President. The states also claimed that CMS failed to abide by the notice and comment requirements for federal rule-making, in violation of the APA and the Social Security Act. In addition, the states argued that the vaccine mandate violated 42 U.S.C. §§ 1395 and 1395z because it granted CMS too much control over the selection of health care employees and because CMS failed to consult with the appropriate state agencies. Finally, the states claimed that the mandate violated 42 U.S.C. § 1302 due to HHS's failure to prepare a regulatory impact analysis on the mandate's effect on rural hospitals.
In addition to the claims of statutory violations, the states also made constitutional and federalism arguments. They stated that the vaccine mandate violated the Spending Clause of the U.S. Constitution by putting an unconstitutional condition on the states' receipt of federal funds and by using the federal government's spending power to conscript state agencies for federal purposes. The states also contended that the mandate violated the anti-commandeering doctrine by compelling states to administer federal regulatory programs. Lastly, the states argued that the federal government violated the Tenth Amendment and the principles of federalism by exercising power beyond what was delegated to it through the Constitution and U.S. Congress and by interfering with the states' police power, which includes the authority to adopt public health regulations.
The states sought a preliminary and permanent injunction against enforcement of the mandate and, a declaration that the mandate is unconstitutional and unlawful, and tolling of the mandate’s compliance deadlines pending judicial review. The case was assigned to District Judge Terry A. Doughty.
The states also moved for a preliminary injunction on November 15, 2021. On November 30, the court granted the motion and enjoined CMS from implementing and enforcing the vaccine mandate. 571 F.Supp.3d 516. The court ruled that the plaintiffs had demonstrated a likelihood of success on the merits of their case. The court relied on a recent Fifth Circuit case upholding a stay of a vaccine mandate promulgated by OSHA in its analysis. The court also found that the Supreme Court’s newly fashioned “major questions doctrine” required Congressional authority for “decisions of vast economic and political significance,” and found no clear indication of Congress's intent to authorize CMS to enact such a substantial and significant mandate.
The court also found a likelihood that CMS improperly bypassed the notice and comment requirements of the APA and the Social Security Act. The court noted that while the requirements may be bypassed if the agency has good cause, CMS's own delay in mandating vaccination undermined its emergency justification argument for dispensing with the requirements.
The court also determined that the states were likely to succeed in establishing that the vaccine mandate is arbitrary and capricious. The court held that CMS lacked evidence showing that vaccination status has a direct impact on COVID-19 spread in healthcare facilities. Furthermore, the court found that CMS had improperly rejected alternatives to the mandate, such as periodic testing or exemptions for individuals with natural immunity from COVID-19 due to a prior infection. The court also found a likelihood of a finding that the mandate is arbitrary and capricious because it is overbroad. Specifically, the court noted that the mandate applies to all covered facilities equally, regardless of the dangers of COVID-19 infection in each respective facility. The court also concluded that CMS had failed to adequately explain its sudden change in policy and judged the change to be pretextual and based on President Biden’s declaration of his intention to impose a national CMS mandate. The court also determined that when CMS weighed the benefits and risks of the mandate to the healthcare industry, it failed to properly consider all reliance interests, particularly the interests of those opposed to the mandate.
Next, the court held that the plaintiffs had shown a likelihood of irreparable harm in the absence of preliminary relief. The court found that the states had shown that the mandate would irreparably harm their sovereign interests because they would be unable to enforce their own laws surrounding vaccination mandates and proof of vaccination. Next, the court determined that the states' “quasi-sovereign” interests were likely to suffer irreparable harm absent a preliminary injunction. These quasi-sovereign interests include the health and well-being of the residents of the plaintiff states. The court found that the plaintiffs had filed adequate support to show that their citizens would be physically and economically harmed by the mandate. These harms stem from the likelihood that the mandate would exacerbate already-existing staffing shortages, which would likely cause a reduction in quality of care, a decrease in the variety of services offered, and possible closures of some facilities, entirely. The court also found that the negative effects on the economies of the plaintiff states would also be irreparable due to sovereign immunity against monetary damages for federal agencies. The court further determined that the plaintiffs would likely face irreparable harm to their proprietary interests absent preliminary relief. These proprietary interests include the general financial health of the plaintiffs' facilities.
Finally, in two paragraphs, the court held that the balance of equities favored the plaintiff states and that the public had an interest in an injunction. With no support, the court concluded that it “believes” the balance favors an injunction because “the public interest is served by maintaining the constitutional structure and maintaining the liberty of individuals who do not want to take the COVID-19 vaccine.” 571 F.Supp.3d 516.
On December 1, 2021, the defendants appealed the district court's preliminary injunction to the Fifth Circuit (USCA Case # 21-3074). On the same day, the defendants moved to stay the preliminary injunction pending their appeal in the district court and in the Fifth Circuit. On December 1, the very same day as the defendants’ motion, the district court denied the stay. 2021 WL 5711601. The court determined that the defendants were not likely to prevail on the merits of their appeal for the same reasons that the court found that the plaintiffs were likely to succeed on the merits of their case. In a single sentence, the court summarily concluded the defendants would not suffer irreparable harm if a stay was not entered. The court also noted that a stay would require unvaccinated employees to receive the vaccine or face termination and concluded a stay would defeat the purpose of the injunction. 2021 WL 5711601.
On December 15, 2021, the Fifth Circuit denied the defendants' motion for a stay pending appeal as it pertained to the fourteen plaintiff states but granted the motion with respect to any other jurisdiction. The appeals court noted that nationwide injunctions must be justified in scope, and it found that the district court’s rationale for granting a nationwide injunction was lacking and did not contain necessary principles of constitutional uniformity or the concern that patchwork rulings would undermine an injunction limited to certain jurisdictions.
On December 16, 2021, the defendants applied to the Supreme Court for a stay of the preliminary injunction pending appeal.
On January 13, 2022, the Supreme Court stayed the district court's injunction pending the defendants' appeal in the Fifth Circuit. 142 S. Ct. 647. In a per curiam opinion, the Court analyzed two preliminary injunctions against CMS's mandate: the injunction issued by the Western District of Louisiana in this case and the injunction issued in Missouri v. Biden. See 571 F.Supp.3d 1079. First, the Court held that the mandate fell within the authorities that Congress conferred on HHS, including the ability to impose conditions on the receipt of Medicaid and Medicare funds if the department finds the conditions necessary in the interest of the health and safety of individuals receiving services through Medicare and Medicaid. The Court found that requiring providers to take steps to avoid transmitting COVID-19 was consistent with this statutory authorization. The Court noted the longstanding practice of HHS to condition Medicare and Medicaid funds on a host of conditions that address the safe and effective provision of healthcare, including conditions of participation that relate to the qualifications and duties of healthcare workers.
The Supreme Court also held that the mandate was not arbitrary and capricious. The Court stated that the plaintiff states had not shown that CMS had failed to examine the relevant data and articulate a satisfactory explanation for its decisions to impose the vaccine mandate instead of a testing mandate; require vaccination of employees with natural immunity; and to depart from the agency's prior approach of encouraging, rather than mandating, vaccination. The Court also concluded that CMS had good cause to delay notice and comment, since it found that the promulgation of the rule in advance of the winter flu season would reduce COVID-19 infections, hospitalizations, and deaths. Justice Thomas filed a dissenting opinion in the case, which was joined by Justices Alito, Gorsuch, and Barrett. Justice Alito also filed a dissenting opinion, which was joined by Justices Thomas, Gorsuch, and Barrett. 142 S. Ct. 647.
On January 6, 2022 the defendants filed an opposed motion to stay proceedings in the district court pending appeal in the Fifth Circuit. The plaintiff states filed an opposition motion on January 14, 2022, arguing that the Supreme Court’s ruling contemplates that litigation will continue in the lower courts. Judge Doughty denied the defendants’ motion to stay the proceedings on January 18, concluding that, while the Supreme Court’s ruling reached some of the merits of the case, the constitutional claims at issue remained unresolved. 2022 WL 495043.
On February 4, 2022, the plaintiff states filed a motion for leave to amend their complaint to add the states of Tennessee and Virginia as plaintiffs, as well as complaining of additions to parties covered by the mandate, that the COVID virus had changed in the intervening time, and that, despite the Supreme Court ruling otherwise, the mandate was now illegal because the deferred notice and comment period had expired in the intervening time. The court denied the motion on February 9, finding that it did not have jurisdiction over the issues because the Supreme Court had remanded the case to the Fifth Circuit, where it remained pending. The court did issue, however, an indicative ruling noting that it would grant the motion for leave to amend if it had jurisdiction. 2022 WL 445159
On February 10, 2022, the states moved in the Fifth Circuit to remand the case to the district court. In an unpublished, nonprecedential per curiam opinion, the Fifth Circuit rejected the states’ motion because the allegation the states requested to amend into the complaint (that the mandate violated the anti-commandeering doctrine) could have been made originally. The states petitioned for a rehearing en banc, which the Circuit denied on March 3, 2022. The parties argued the appeal to the original district court’s grant of preliminary injunction before the Fifth Circuit on June 6, 2022. The parties then agreed that the preliminary injunction should be vacated, and the court issued an unpublished opinion vacating the injunction and remanding the case for resolution on the merits on June 13, 2022. 2022 WL 2116002.
Meanwhile, in the district court, the defendants had filed a motion to dismiss for failure to state a claim on March 17, 2022, arguing that the Supreme Court’s decision regarding the stay of injunction in this case and Biden v. Missouri resolved the issue by either explicitly or implicitly rejecting all of the plaintiff states’ claims. The defendants also argued that the mandate did not violate the anti-commandeering doctrine because it imposed the same conditions no matter whether the facilities were privately run or run by the states. The states never filed a motion to amend their complaint to include the anti-commandeering doctrine argument, and on November 3, 2022, Magistrate Judge Kayla D. McClusky issued a recommended opinion agreeing that the Supreme Court’s ruling rejected the states’ claims and dismissed the complaint with prejudice. 2022 WL 17408035.
The states objected to the recommendation on November 17, 2022, citing the Supreme Court's major questions doctrine ruling in West Virginia v. EPA, but Judge Doughty accepted the recommendation after a de novo review on December 2, 2022.
The states did not file an appeal, and the case is closed.
Summary Authors
Terry Howard (12/23/2022)
Terry Howard (9/22/2023)
Missouri v. Biden, Eastern District of Missouri (2021)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/63154813/parties/louisiana-v-becerra/
Doughty, Terry Alvin (Louisiana)
Brungard, Morgan Elizabeth (Louisiana)
Dewhirst, David M (Louisiana)
Fisher, Thomas Molnar (Louisiana)
Drezner, Michael (Louisiana)
Doughty, Terry Alvin (Louisiana)
See docket on RECAP: https://www.courtlistener.com/docket/63154813/louisiana-v-becerra/
Last updated Sept. 22, 2023, 9:20 p.m.
State / Territory: Louisiana
Case Type(s):
Presidential/Gubernatorial Authority
Public Benefits/Government Services
Special Collection(s):
Key Dates
Filing Date: Nov. 15, 2021
Closing Date: Dec. 2, 2022
Case Ongoing: No
Plaintiffs
Plaintiff Description:
14 U.S. states
Plaintiff Type(s):
Public Interest Lawyer: No
Filed Pro Se: No
Class Action Sought: No
Class Action Outcome: Not sought
Defendants
U.S. Department of Health and Human Services (HHS) (- United States (national) -), Federal
Case Details
Causes of Action:
Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Medicare, 42 U.S.C. 1395-1395lll (Title XVIII of the Social Security Act)
Constitutional Clause(s):
Federalism (including 10th Amendment)
Available Documents:
Injunctive (or Injunctive-like) Relief
Outcome
Prevailing Party: Defendant
Nature of Relief:
Preliminary injunction / Temp. restraining order
Source of Relief:
Content of Injunction:
Issues
COVID-19: