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 3:21-CV-3970

Before Jolly, Elrod, and Haynes, Circuit Judges.

United States Court of Appeals

Fifth Circuit

FILED

June 13, 2022

Lyle W. Cayce

Clerk

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Per Curiam:*

In November 2021, the Secretary of Health and Human Services 

issued an interim final rule which required that, in order to receive Medicare 

or Medicaid funding, participating facilities must ensure that their employees 

are vaccinated against COVID-19. See 86 Fed. Reg. 61555 (2021). States 

across the country sued to challenge the rule. A district court in Missouri 

preliminarily enjoined enforcement of the rule as applied to the plaintiff–

states in that case. Missouri v. Biden, --- F. Supp. 3d ---, 2021 WL 5564501, at 

*15 (E.D. Mo. Nov. 29, 2021). The next day, the district court in this case 

did the same for every other state, effectively enjoining enforcement of the 

rule nationwide. Louisiana v. Becerra, --- F. Supp. 3d ---, 2021 WL 5609846, 

at *17 (W.D. La. Nov. 30, 2021). A panel of this court partially granted a stay 

of that injunction as to the non-party states, but denied a stay as to the

fourteen plaintiff–states. Louisiana v. Becerra, 20 F.4th 260, 264 (5th Cir. 

2021). The Supreme Court later stayed both injunctions in their entirety and 

remanded the case back to this court. Biden v. Missouri, 142 S. Ct. 647, 654–

55 (2022).

Although this court had not responded to the Supreme Court’s 

remand, Louisiana, joined by the remainder of the plaintiff–states, moved in 

the district court for leave to amend its complaint. Because our court had 

jurisdiction over the case, the district court denied that motion and issued an 

indicative ruling noting that it would grant the motion for leave to 

amend. Louisiana then moved in our court for a limited remand so the 

district court could grant leave to amend the complaint and to allow those 

new claims to be litigated in the district court. The motions panel denied that 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

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motion, allowing the merits panel to resolve the remand issue and the 

propriety of the district court’s preliminary injunction.

We have jurisdiction to decide only whether the district court erred in 

granting the earlier preliminary injunction that the Supreme Court has now 

stayed and remanded. See 28 U.S.C. § 1292(a)(1). The parties now agree 

that the preliminary injunction should be vacated. Accordingly, we 

VACATE the district court’s preliminary injunction and REMAND this 

case to the district court for further consideration in the light of the Supreme 

Court opinion. In addition, we VACATE the motions panel’s order denying 

the motion to remand as MOOT. Finally, we express no opinion on whether 

the district court should grant or deny leave to amend the complaint or on 

the propriety of Louisiana’s other claims. 

VACATED and REMANDED.

Case: 21-30734 Document: 00516354654 Page: 3 Date Filed: 06/13/2022