111 East Wacker Drive, Suite 500, Chicago, Illinois 60601

U.S. Appeals Court Limits Scope of Halt of CMS Vaccine Mandate

By Sean D. Hurley

The U.S. Court of Appels has limited the scope of a prior injunction that halted CMS’s Vaccine Mandate nationwide and, instead, restricted the injunction only to those states that are party to the case.  Consequently, CMS may proceed in enforcing its mandate in 26 states that are not party to either lawsuit on this issue.  The 5th Circuit’s decision follows  the November 30, 2021, ruling by the U.S. District Court for the Western District of Louisiana, which granted a nationwide preliminary injunction enjoining the U.S. Department of Health and Human Services and the Center for Medicare and Medicaid Services (“CMS”) from implementing the vaccine mandate issued by CMS in early November. That mandate requires employees of Medicare and Medicaid certified healthcare facilities to have received the first dose of the COVID-19 vaccine by December 6, 2021, and the second dose by January 4, 2022. The order was entered in a lawsuit filed by a coalition of 14 states challenging the CMS vaccine mandate.

The court found that a nationwide injunction was necessary due to the need for uniformity. Therefore, the scope of the injunction applied nationwide, except for the states of Alaska, Arkansas, Iowa, Kansas, Missouri, New Hampshire, Nebraska, Wyoming, North Dakota, and South Dakota, since those ten states were already under a preliminary injunction order dated November 29, 2021, issued by the Eastern District of Missouri in a separate lawsuit challenging the CMS vaccine mandate. On December 2, 2021, in accordance with these decisions, CMS issued a memorandum addressed to State Survey Agency Directors, advising them that CMS “has suspended activities related to the implementation and enforcement of this rule pending future developments in the litigation,” and that, while the preliminary injunctions are in effect, “surveyors must not survey providers for compliance with the requirements of the Interim Final Rule.”

CMS appealed the injunctions issued by the Western District of Louisiana and the Eastern District of Missouri. On December 13, 2021, the U.S. Court of Appeals for the Eighth Circuit entered an order upholding the preliminary injunction entered by the Eastern District of Missouri, which applies to the ten states involved in that lawsuit. The Eighth Circuit did not offer any rationale when refusing CMS’ request to stay the preliminary injunction.

On December 15, 2021, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit entered an order upholding the preliminary injunction entered in the Western District of Louisiana case, but staying the injunction as to the states who are not parties to that lawsuit. The Fifth Circuit agreed with the lower court that CMS failed to demonstrate that it was likely to succeed on the merits against the challenges to the vaccine mandate. The Court also found that the other relevant factors (injury to the movant, injury to the opponent, and the public interest) are important, but “they will not overcome our holding that the merits of the injunction will not likely be disturbed on appeal.”

While the Fifth Circuit concluded that the preliminary injunction should remain in effect, it also found that the lower court erred in applying the injunction nationwide. The Court reasoned that other jurisdictions are considering this issue, and “[i]ts ultimate resolution will benefit from ‘the airing of competing views’ in our sister circuits.” Another reason the Court found that a nationwide injunction was inappropriate  is that many states that are not challenging the vaccine mandate “may well have accepted and even endorsed the vaccination rule.” In this instance, the Court found that the lower court offered insufficient justification for imposing its injunction nationwide.

In light of these rulings, the preliminary injunctions issued by the Missouri and Louisiana courts remain in effect as to the following states: Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky, Ohio, Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota, and New Hampshire.

It is expected that CMS will act quickly in appealing these injunctions to the U.S. Supreme Court.  It remains to be seen what steps CMS will now take to enforce its mandate in the 26 states that are not party to either suit, and where, as of today’s ruling, it is no longer enjoined from enforcing the mandate.  In the meantime, should you have questions, please contact Michael A. Airdo at 312-506-4480 or [email protected] or Sean Hurley at 312-506-4455 or [email protected].