United States Court of Appeals

for the Fifth Circuit

___________

No. 21-30734

___________ 

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, Secretary, 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 United 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

Clerk
No. 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 stay 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 showing 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 interest 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 reasons 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 first 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 Supreme 
No. 21-30734

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

courts’ 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 tobacco. 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. Department 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 exercise 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 statutory 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). 
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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 the 

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 control 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 refused 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 vaccination 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 “circumstances.” 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. 21-30734

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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 unvaccinated 

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 Gorsuch 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 lower 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 encourages 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. 
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IT 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 jurisdiction.