On Wednesday, December 15, 2021, the U.S. Court of Appeals for the Fifth Circuit scaled back the reach of the preliminary injunction against the Centers for Medicare and Medicaid Services’ (“CMS”) COVID-19 vaccination mandate (“Mandate”) that a Louisiana federal district court issued two weeks earlier.  This CMS Mandate is the rule requiring that healthcare workers who work in health care settings that receive Medicare or Medicaid reimbursement be fully vaccinated against COVID-19 by January 4, 2022, or face termination.  The injunction is now limited to the 14 states who are parties to the lawsuit: Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah, and West Virginia (the “States”).  This is an update to our December 6 article covering the district court’s opinion rationale for issuing the nationwide injunction.

The Fifth Circuit’s decision means that the CMS Mandate is now unhindered in 26 states, including Virginia and Illinois.  This is because this past Monday, December 13, 2021, the U.S. Court of Appeals for the Eighth Circuit denied CMS’s motion to stay the very first preliminary injunction issued against the CMS Mandate.  That preliminary injunction, issued by a Missouri federal district court on November 29, was not nationwide.  Instead, it only blocked the Mandate in ten states: Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming.  Consequently, the CMS Mandate must now be paused in 24 states pending further developments in the litigation.  Any such developments will almost certainly come from the U.S. Supreme Court.

In explaining the decision to stay the preliminary injunction in non-party states, the Fifth Circuit underscored the need to preserve the status quo in those 26 states.  The Court observed that the “district court here gave little justification” for extending the preliminary injunction to the entire country.  The Court also cited a recent concurring opinion by Supreme Court Justice Neil Gorsuch wherein he acknowledged the benefits of having multiple courts weigh in on matters of national significance and the necessity of “the airing of competing views” while on the road to finally resolving those matters.  Ultimately, while the Fifth Circuit doubted CMS’s ability to succeed on the merits against the States’ challenges to the Mandate, it found sufficient bases to stay the preliminary injunction pending further action by the Supreme Court.

The States are expected appeal to the Supreme Court in the coming days.  Any such appeal will likely be consolidated with CMS’s anticipated appeal of the Eighth Circuit’s ruling.  As was noted in our December 6 article, CMS issued a memorandum earlier this month stating it would suspend all activities related to implementing or enforcing the Mandate “pending future developments in the litigation.” It is not clear at this time whether they will retract that memorandum given the latest developments, but such a reversal of course seems unlikely.

Authored by: Michael D. Pierce