The Fifth Circuit Limits Enjoinment Of The CMS Rule To Only The Plaintiff States

The Fifth Circuit U.S. Court of Appeals issued an order Wednesday, denying the U.S. Government’s attempt to stay an injunction issued by the Western District of Louisiana court, which entered a nationwide injunction against the Centers for Medicare and Medicaid Services’ recent vaccine mandate for certain health care workers.  In doing so, however, the Fifth Circuit held that the injunction was limited only to the fourteen plaintiff states in the underlying action.

Earlier this month, Judge Terry A. Doughty of the Western District of Louisiana issued an order in favor of fourteen plaintiff states and against the U.S. Department of Health and Human Services and the Center for Medicare and Medicaid Services, enjoining the latter from implementing the CMS Mandate set forth in 86 Fed. Reg. 61555-01.  The CMS mandate would require over 10.3 million healthcare workers to be fully vaccinated with one of the Covid-19 vaccines by January 4, 2022.  The Court’s injunction restrained implementation of the CMS mandate as to all healthcare providers, suppliers, owners, employees, and all others covered by the CMS mandate.  At the time that the injunction was granted, the scope was not limited to states who filed suit.  Instead, the scope of the injunction was nationwide, except for those states already under a preliminary injunction order issued by the United States District Court for the Eastern District of Missouri on November 29, 2021. (Missouri v. Biden, No. 4:21-cv-01329)  The court noted that it considered limiting its injunction to the fourteen states who brought the suit, but it ultimately decided that “due to the nationwide scope of the CMS mandate, a nationwide injunction is necessary due to the need for uniformity.”

The U.S. Government sought to stay the district court’s decision while the matter was pending appeal.  While denying the stay relating to the fourteen plaintiff states, the Fifth Circuit focused heavily on whether the injunction should remain in effect beyond the fourteen states that brought the underlying lawsuit.  In determining that the district court overreached, the Circuit Court held that “[t]he district court gave little justification for issuing an injunction outside the 14 States that brought this suit.”  The Court further concluded that the district court’s reasoning lacked “either the constitutional uniformity principle [or the] concern that patchwork rulings would undermine an injunction limited to certain jurisdictions.”  As such, the Court denied the government’s motion to stay, insofar as to the district court order applies to only the fourteen plaintiff states, namely, Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky and Ohio.  Coupled with the Missouri decision, which again only limits to those plaintiff states, the CMS mandate is currently only enforceable in half of the country.  However, late last night, the U.S. Government asked the U.S. Supreme Court to stay both the Missouri and Louisiana injunctions so to make the CMS mandate enforceable while both cases are pending appeal.  In the meantime, the numerous categories of health care entities that are both subject to the CMS rule and in unaffected states are likely to reinstitute or continue their mandates consistent with the CMS requirements.