Health Worker Vaccine Rule Case Poised to Go Back to Lower Court

The Fifth Circuit signaled it will vacate and send back a lower court decision to block the Biden administration’s health worker vaccine mandate across the country after the US Supreme Court allowed the rule to take effect.

“We’re going to remand, no question about that. On a preliminary injunction, you gotta send it back,” Judge Catharina Haynes said Monday during arguments in a case that tests the Medicare agency’s power to mandate health and safety conditions for health-care workers.

The Centers for Medicare & Medicaid Services’ Covid-19 vaccine mandate marked the first time the agency has forced workers to have any kind of inoculation. Facilities that don’t comply risk termination from the Medicare and Medicaid programs, which could devastate their finances.

A federal court in Louisiana blocked the Biden administration from enforcing the mandate for health workers almost nationwide in November 2021. The Supreme Court granted a stay on the preliminary injunction, saying the CMS can enforce health and safety conditions on any facilities it gives money to.

The Biden administration appealed the lower court decision before the Supreme Court issued its ruling.

Now the Biden administration, the group of states led by Louisiana, and the circuit court judges agree that vacating and remanding the lower court’s preliminary injunction is necessary.

“The motion’s panel knew we were going to remand,” Haynes said.

“We have conceded since February that the case should be remanded,” Louisiana Solicitor General Elizabeth Murrill said during oral argument. That was the outcome in a parallel lawsuit from a group of states led by Missouri in the US Court of Appeals for the Eighth Circuit.

In granting the federal government’s application to stay the preliminary injunction, the Supreme Court “resolved the merits of the States’ challenge to the rule in the federal government’s favor,” the HHS said in a brief after the Supreme Court decision.

Texas and Florida also sued the Biden administration over the vaccine mandate. But in light of the Supreme Court decision, Texas dismissed its complaint and Florida dismissed its appeal, according to the HHS.

Anti-Commandeering

Both sides asked the appeals court to go one step further and weigh in on the merits of the case.

The Biden administration asked the court to address a “legal error” related to the states’ anti-commandeering claim. The Anti-Commandeering Doctrine prohibits the federal government from requiring states to enforce a federal law on behalf of the government.

“The plaintiffs did argue to the Supreme Court that the rule is coercive as applied to state-run hospitals and other state-run facilities because the consequence of not complying with the rule would be potentially the loss of Medicare and Medicaid funding,” said Department of Justice attorney Alisa Klein.

But “when a federal regulation applies in an even-handed way to facilities or entities that are operated privately and entities that are operated by a state or local government, it just doesn’t implicate the anti-commandeering doctrine,” Klein said.

The lower court said in its November 2021 opinion that it needed more information about how many state-run versus private facilities are affected by the rule, “which could result in a violation of the Anti-Commandeering Doctrine.”

The states want to be able to add more information, but “we were denied the opportunity to do that” by a motions panel hearing, Murrill said.

Judges repeatedly asked both sides why they shouldn’t just avoid opining on the dispute altogether. “An order that says vacate and remand, have a nice day, that would be complying with what we’re supposed to do?” Haynes asked Murrill.

“That is fair,” Murrill said.

State Surveyor Guidance

The Biden administration and the states also disagree about the legality of a Jan. 25 guidance document by the CMS that says state surveyors should avoid entering health-care facilities if they aren’t fully vaccinated.

The guidance raises “new Anti-Commandeering Doctrine arguments, not implicated in the injunction on appeal, that the district court should decide,” the states said in an amended petition for expedited rehearing filed in February.

But Klein said the states’ claim that the guidance violates the Anti-Commandeering Doctrine isn’t valid because the guidance isn’t legally binding.

Judge Jennifer Walker Elrod said “it’s a very difficult way to try to be compliant with a government regulation” when an agency issues “strongly worded” guidance and says it’s “not even binding anyway.”

Klein acknowledged the agency “could have better written the guidance back in January.”

The case is Louisiana v. Becerra, 5th Cir., No. 21-30734, oral argument 6/6/22.