Nationwide Hold Emerges on CMS Vaccine Mandate for Health Care Staff

The Biden administration’s vaccine mandate for health care staff has hit yet another stumbling block.  On November 30, 2021, a Louisiana federal court issued a preliminary injunction nationwide to halt the Centers for Medicare and Medicaid Services’ (CMS) Interim Final Rule (IFR), which required COVID-19 vaccination for covered health care staff by January 4, 2022.  This new order out of Louisiana follows shortly after a federal court in Missouri stopped the CMS rule in 10 states.

The Bottom Line: A Nationwide Halt

The scope of Louisiana’s preliminary injunction is nationwide, but it does not cover the 10 states (Alaska, Arkansas, Iowa, Kansas, Missouri, New Hampshire, Nebraska, Wyoming, North Dakota and South Dakota) already under a preliminary injunction from the earlier November 29, 2021 order out of Missouri.  Effectively, between the Missouri and Louisiana court orders, the CMS COVID-19 vaccine mandate for health care staff is halted nationwide.

As a reminder, a preliminary injunction is used to stop activity or to preserve the “status quo” pending a trial or final judgment.  These orders mean that CMS cannot implement or enforce the IFR until a court orders otherwise or until a trial is conducted on the merits.

Diving Deeper into the Court’s Order

On November 15, 2021, attorneys general in 12 states (Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah and West Virginia) filed a challenge to the IFR.  The Louisiana-led coalition challenged CMS’s rule on the grounds that the mandate:

1. Was issued without following statutorily required processes;
2. Is beyond the authority of the government defendants;
3. Is contrary to law;
4. Is arbitrary and capricious in violation of the Administrative Procedure Act; and
5. Violates the U.S. Constitution’s Spending Clause, Tenth Amendment, and Anti-Commandeering Doctrine.

In its ruling, the Louisiana federal court largely sided with the states and recognized the states’ substantial showings on the raised issues.  The court’s analysis mirrors the reasoning of the federal Missouri court’s order, particularly in finding that there was no “good cause” for CMS to bypass required notice and comment processes for rulemaking and that CMS lacks the clear Congressional authority needed to make decisions of “vast economic and political significance.”

A new focus to this Louisiana order rose from the challenge under the Social Security Act.  The court was persuaded by the states’ argument that CMS failed to comply with Social Security Act provisions which require:

1. The Secretary to consult with appropriate state agencies relating to conditions of participation by service providers.
2. Nothing in the Social Security Act to be construed to exercise any supervision or control over … the situation, tenure or compensation of any officer or employee of any institution, agency, or person providing health services.
3. An initial regulatory impact analysis whenever the Secretary publishes notice for a proposed rule that “may” have a significant impact on the operations of a substantial number of small rural hospitals.

The court determined that, because CMS did not comply with any of the above provisions, the states were likely to succeed on the merits of their claim that the IFR is contrary to law, under the Social Security Act.  Based on all presented arguments, the Louisiana court concluded that a preliminary injunction should be issued against CMS’s mandatory vaccination rule and stated that “during a pandemic such as this one, it is even more important to safeguard the separation of powers set forth in our Constitution to avoid erosion of our liberties.”

Unlike the earlier Missouri court order, Louisiana’s federal court broadened the scope of its preliminary injunction to be nationwide—excluding those 10 states already under Missouri’s preliminary injunction.  The court stated that “due to the nationwide scope of the CMS Mandate, a nationwide injunction is necessary due to the need for uniformity” and noted there are “unvaccinated healthcare workers in other states who also need protection.”

What is the Authority?

A federal district court’s authority to issue a “nationwide injunction” (sometimes called “universal injunctions”) comes from its equitable powers.  In other words, nothing in the Constitution, federal statutes, or Federal Rules of Civil Procedure expressly allow a district court to issue a nationwide injunction; it’s rooted in historical precedent and federal common law.  See Steele v. Bulova Watch Co., 344 U.S. 280, 289 (1952) (stating the “District Court in exercising its equity powers may command persons properly before it to cease or perform acts outside its territorial jurisdiction”).

The Future: What Now?

This order issues a nationwide halt to CMS’s vaccine mandate, but the legal battles will continue.  The Louisiana federal court itself noted that “This matter will ultimately be decided by a higher court than this one.”  The typical appeals process may be one potential avenue of continued litigation.  If Louisiana’s injunction is directly appealed, it would be heard by the U.S. Fifth Circuit Court of Appeals.

It is possible, however, that we may soon see the U.S. Judicial Panel on Multidistrict Litigation consolidate the federal cases (arising out of Missouri, Louisiana, and elsewhere) challenging CMS’s COVID-19 vaccine rule.  When multiple parties sue a federal agency in different appeals courts, those cases may be consolidated, and a special judicial panel randomly selects one court to hear and determine all consolidated cases.  This consolidation and lottery process was recently used to determine which federal circuit court would hear consolidated cases to the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS) on COVID-19 vaccination or testing.

With these recent orders from Louisiana and Missouri and with more cases pending, challenges to the CMS vaccine mandate for healthcare workers may soon follow in the footsteps of OSHA’s ETS.  For now, it may be reasonable for facilities across the nation to delay implementation of CMS’ vaccine mandate.