# United States Court of Appeals **f or the Fifth Circuit** 

___________

No. 21

- 30734

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**State of Louisiana; State of Montana; State of Arizona; State of**  **Alabama; State of Georgia; State of Idaho; State of Indiana; State of Mississippi; State of**  **Oklahoma; State of South Carolina; State of Utah; State of West Virginia; Commonwealth of Kentucky;**  **State of Ohio,**

Plaintiffs

— Appellees **,**

versus

**Xavier Becerra, S ecretary, U.S. Department of Health**  **and Human Services; United States Department of Health and Human Services; Chiquita Brooks** 

**- Lasure;**  **Centers for Medicare and Medicaid Services,**

Defendants

— Appellants

**.**

______________________________ Appeal from the Uni ted States District Court for the Western District of Louisiana USDC No. 3:21

- CV

- 3970

______________________________

Before **Southwick, Graves,** and **Costa,** Circuit Judges

**. Per Curiam:** 
The Secretary of the Department of Health and Human Services and other federal government defendants move to stay a district court’s United States Court of Appeals Fifth Circuit 

### FILED December 15, 2021
Lyle W. Cayce ClerkNo. 21

- 30734

2 nationwide, preliminary injunction that bars enforcement of one of the
federal COVID

- 19 vaccination mandates. The enjoined mandate applies to the staff of many Medicare

- and Medicaid

- certified providers such as hospitals, long

- term care facilities, home

- health agencies, and hospices.

We **DENY** the motion insofar as the order applies to the 14 Plaintiff

States. We **GRANT** a st ay as to the order’s application to any other jurisdiction. Briefly, we will explain.
When analyzing a request to stay a district court’s preliminary injunction, we are to consider the following factors:
(1) whether the stay applicant has made a strong s howing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public inte rest lies.

Veasey v. Perry , 769 F.3d 890, 892 (5th Cir. 2014) (quoting Nken v. Holder , 556 U.S. 418, 426 (2009)). Likelihood of success and irreparable injury to the movant are the most significant factors. Id.

The district court cited a number of reason s for enjoining the rule. Especially in light of a recent, precedential opinion from this court, see BST Holdings, L.L.C. v. OSHA , 17 F.4th 604 (5th Cir. 2021), it appears that the Secretary will have the most difficulty overcoming the part of the ruling that applied the “major questions doctrine.” We thus focus on that issue in assessing whether the Secretary has made a strong showing of likely success.
The district court held that the Secretary’s decision to enter the vaccine regulatory space for the fi rst time implicates what some courts and commentators have called the “major questions doctrine,” though apparently not (yet) so designated in a majority opinion for the SupremeNo. 21

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3 Court. 1 It appears to us not so much a new doctrine but a new label for

cour ts’ method of analyzing federal agencies’ novel assertions of authority. For example, the Supreme Court did not give deference to the Food and Drug Administration’s 1996 decision that it had implicit authority under its governing statutes to regulate toba cco. FDA v. Brown & Williamson Tobacco Corp. , 529 U.S. 120, 159

– 60 (2000).
Our court relied in part on this doctrine in recently staying the

COVID

- 19 vaccination mandate the Occupational Safety and Health Administration (“OSHA”) issued for employers of a certain size. BST Holdings , 17 F.4th at 617; see also Alabama Ass’n of Realtors v. Dep artmen t of

HHS , 141 S. Ct. 2485, 2489 (2021) (staying CDC’s eviction moratorium based in part on the need for Congress “to speak clearly when authorizing an
agency to ex ercise powers of ‘vast economic and political significance’” (quoting Brown & Williamson , 592 U.S. at 160)). The Secretary identifies meaningful distinctions between its rule for Medicare and Medicaid

- funded
facilities and the broader OSHA rule

— the stat utory authority for the rule is different; Medicare and Medicaid were enacted under the Spending Clause rather than the Commerce Clause; and the targeted health care facilities, especially nursing homes, are where COVID

- 19 has posed the greatest risk.

It is a close call whether these distinctions (or others) of BST Holdings will ultimately convince the panel hearing this appeal. Nonetheless, the first stay factor requires more than showing a close call. We cannot say that the Secretary has made a strong showing of likely success on the merits.

1 Able researchers for this panel have discovered that this doctrinal label has been used only twice at the Supreme Court in merits opinions on a case

— once in a concurrence and the other in a dissent. Department of Homeland Sec. v. Regents of the Univ. of Cal ., 140 S. Ct. 1891, 1925 (2020) (Thomas, J., concurring); Gundy v. United States , 139 S. Ct. 2116,
2141

– 42 (2019) (Gorsuch, J., dissenting).No. 21

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4 The other three factors for a stay

— injury to the movant, injury to the opponent, and the public interest

— are important but, regardless of the outcome of analyzing them, they will not overcome our holding that th e merits of the injunction will not likely be disturbed on appeal. That is especially so because preserving the status quo “is an important” equitable consideration in the stay decision. Dayton Bd. of Educ. v. Brinkman , 439 U.S. 1358, 1359 (1978)). Here , the Secretary’s vaccine rule has not gone into
effect.
Though we deny the stay generally, we also consider whether the preliminary injunction should remain in effect beyond the 14 states that have brought this suit. Principles of judicial restraint c ontrol here. Other courts are considering these same issues, with several courts already and inconsistently ruling. Compare Florida v. Department of HHS , — F.4th

— , 2021 WL 5768796 (11th Cir. Dec. 6, 2021) (declining to enjoin rule after
district court r efused to do so), with Missouri v. Biden , — F. Supp. 3d

— , 2021 WL 5564501 (E.D. Mo. Nov. 29, 2021) (enjoining rule in the ten plaintiff states). In addition, the many states that have not brought suit may well have accepted and even endorsed the vaccinat ion rule.
The question posed is whether one district court should make a binding judgment for the entire country. At times, we have answered the question affirmatively. For example, we allowed nationwide injunctions in an immigration case. See Texas v. United States , 809 F.3d 134, 188 (5th Cir. 2015). That decision, though, does not hold that nationwide injunctions are required or even the norm. As is true for all injunctive relief, the scope of the injunction must be justified based on the “circum stances.” Id . That justification existed in Texas because of the constitutional command for “uniform” immigration laws and a concern that “a geographically

- limited injunction would be ineffective because DAPA beneficiaries would be free to move among states.” Id . at 187

– 88.No. 21

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5 The district court here gave little justification for issuing an injunction outside the 14 States that brought this suit. It stated that “due to the nationwide scope of the CMS Mandate, a nationwide injunction is necessary due to the need for uniformity” and noted that “there are un vaccinated workers in other states who also need protection.” Lacking is either the constitutional uniformity principle in Texas or that case’s concern that patchwork rulings would undermine an injunction limited to certain jurisdictions.
Justice Gorsu ch recently critiqued the frequency of the imposition of nationwide injunctions. Such injunctions at times can constitute “rushed, high

- stake, low

- information decisions,” while more limited equitable relief
can be beneficial:
The traditional system of low er courts issuing interlocutory relief limited to the parties at hand may require litigants and courts to tolerate interim uncertainty about a rule’s final fate and proceed more slowly until this Court speaks in a case of its own. But that system encourag es multiple judges and multiple circuits to weigh in only after careful deliberation, a process that permits the airing of competing views that aids this Court’s own decisionmaking process.
Department of Homeland Sec. v. New York , 140 S. Ct. 599, 600 (2020 ) (Gorsuch, J., concurring in the grant of a stay).
This vaccine rule is an issue of great significance currently being litigated throughout the country. Its ultimate resolution will benefit from “the airing of competing views” in our sister circuits. See id. Though here too, as with the other issues before us, we are not in a position to make definitive pronouncements about the outcome of this appeal, we do predict that the Secretary is likely to prevail in limiting the scope of the injunction.No. 21

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6 **I T IS THEREFORE ORDERED**  that the opposed motion for stay of the district court’s preliminary injunction order pending appeal is

**DENIED** insofar as the order applies to the 14 Plaintiff States. A stay is

**GRANTED** as to the order’s application to any other jur isdiction.