On Wednesday, December 15, 2021, the Fifth Circuit Court of Appeals denied the federal government’s petition for a stay pending appeal of the preliminary injunction issued by a federal district court in Louisiana that prohibits CMS from enforcing its COVID-19 vaccine mandate for healthcare providers. The Fifth Circuit, however, lifted the preliminary injunction as to states that were not party to the lawsuit, finding that a nationwide injunction was unwarranted. Accordingly, because of the Fifth Circuit’s order, the preliminary injunction remains in effect for the 14 states that are plaintiffs in that case. Together with injunctions issued by other federal courts, CMS is enjoined from implementing or enforcing the vaccine mandate as to 25 states. It remains unclear whether CMS will resume enforcing its COVID-19 vaccine mandate as the other remaining 25 states and the District of Columbia while the lawsuits challenging the mandate continue to be litigated.

This litigation involves a challenge filed in the U.S. District Court of the Western District of Louisiana by 14 plaintiff states – Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah and West Virginia – of a November 5, 2021 CMS Interim Final Rule, “Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination,” 86 Fed. Reg. 61 (Nov. 5, 2021), which would require most staff working in certified Medicare or Medicaid provider facilities and suppliers to be fully vaccinated against COVID-19 by January 4, 2022, and to have received their first shot by December 6, 2021. The Interim Final Rule, which does not have a sunset clause or expiration date, took effect on November 5, 2021. CMS cited “good cause” to issue the rule without first engaging in notice-and-comment, but instead provided a 60-day comment period that runs concurrent with the rule’s implementation.

On November 30, 2021, the Louisiana District Court issued a nationwide preliminary injunction preventing CMS from enforcing its COVID-19 vaccine mandate, finding, among other things, that the mandate did not comply with the Administrative Procedure Act. The December 15, 2021, Fifth Circuit order denied the federal government’s request for a stay of the district court’s order pending appeal, concluding that the federal government failed to make a “strong showing of likely success on the merits.” However, the Fifth Circuit lifted the nationwide injunction except for the plaintiff-states on grounds that other courts, namely the Eleventh Circuit, had denied similar injunctive relief against the mandate, and the possibility that “many states that have not brought suit may well have accepted and even enforced the vaccination rule.” The Fifth Circuit further noted that the district court issuing the injunction “gave little justification” for the need for the nation-wide scope of injunction issued.

As noted by the Fifth Circuit, the Louisiana District Court lawsuit is one of several ongoing lawsuits being litigated in U.S. federal courts challenging CMS’s COVID-19 vaccine mandate. The Fifth Circuit order followed an injunction issued by a Missouri District Court in a similar federal court challenge that applied only to that lawsuit’s 10 plaintiff states – Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming. On December 13, 2021, the Eight Circuit Court of Appeals denied the federal government’s request to stay the district court’s order pending appeal.

The State of Texas also brought its own separate lawsuit challenging the CMS mandate. Immediately following the December 15 Fifth Circuit order, the federal district court in Texas held an emergency hearing and issued an order enjoining CMS from implementing or enforcing the vaccine mandate in the State of Texas.

Although these various courts have effectively enjoined CMS from implementing or enforcing the vaccine mandate in 25 states, the federal government has prevailed before some courts. The State of Florida brought its own lawsuit challenging the mandate, and the federal district court in Florida denied the motion for preliminary injunction finding that Florida had not made an adequate showing of irreparable harm. Florida sought a stay of the order pending appeal, but the Eleventh Circuit denied that request, holding that Florida was not likely to succeed on the merits, nor had it made a showing of irreparable harm. The State of Florida has sought rehearing en banc by the full Eleventh Circuit.

In light of these various legal challenges, CMS issued a memorandum on December 2, 2021, stating that it “will not enforce” the COVID-19 vaccine mandate “while there are court-ordered injunctions in place prohibiting enforcement” of the mandate. The CMS memo referenced the injunctions issued by District Courts in Missouri and Louisiana, and stated that “while these preliminary injunctions are in effect,” CMS “has suspended activities related to the implementation and enforcement of this rule pending future developments in the litigation.” The memo is unclear as to whether the enforcement suspension would continue to apply nationwide irrespective of the scope of these “court-ordered injunctions.” Indeed, now that the rule is longer subject to aa nationwide injunction per the Fifth Circuit order, CMS has yet to publicly clarify whether this change in n impacts the applicability of the enforcement suspension as to the 25 states not covered by any court-order currently.

There is no official indication yet as to when CMS will resume enforcement activity as to the states and jurisdictions that are not subject to any order enjoining implementation or enforcement of the COVID-19 vaccine mandate. However, the American Hospital Association has stated in a December 18, 2021 entry in its online blog that “AHA has confirmed with CMS that this statement applies nationwide and remains accurate even after the Fifth Circuit’s order staying the nationwide effect of the Louisiana district court’s preliminary injunction. In other words, CMS is not currently enforcing its vaccine mandate in all states, including those where the mandate is not presently judicially stayed.”

On Thursday, December 17, 2021, the Department of Justice filed a petition with the Supreme Court seeking a stay of the injunctions issued by the Louisiana and Missouri district courts pending appeals before the Circuit Courts, and thus permit CMS’s COVID-19 vaccine mandate to proceed. The federal government states in the filing that the “application seeks a stay of that injunction to allow the Secretary’s urgently needed health and safety measure to take effect before the winter spike in COVID19 cases worsens further.” The Supreme Court has set a deadline of December 30 for the states to respond to the federal government’s stay petition.

As things stand now, preliminary injunctions enjoin the COVID-19 vaccine mandate as to the following 25 states: Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Missouri, Mississippi, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, and Wyoming.

The following jurisdictions are not covered by any court-ordered injunctions: California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington, Wisconsin, and the District of Columbia.

CMS’s November 5, 2021 Interim Final Rule, “Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination,” can be found here. A copy of the December 2, 2021 CMS memo suspending enforcement of the COVID-19 vaccine mandate can be found here. A copy of the December 15, 2021 Fifth Circuit opinion staying the nationwide injunction barring enforcement of the vaccine mandate can be found here. A copy of the DOJ’s petition with the U.S. Supreme Court can be found here.