Saturday, January 1, 2022: U.S. District Courts Enjoin Vaccine and Masking Mandate HHS Sought to Impose on Teachers and Students Participating in Federal “Head Start” Programs with Possible Legal Implications for Other Private Sector Vaccination Mandates
In two separate decisions issued late last week, two U.S. District Courts enjoined a November 30, 2021 Administration for Children and Families’ (“ACH”) Interim Final Rule (“Rule”) imposing vaccine and masking requirements for teachers and students in federal Head Start programs. The two decisions stop implementation of vaccine and masking requirements in Head Start early education programs operating in 25 states. The two cases are Texas, et al. v. Becerra, et al., Case No. 5:21-cv-300-H (N.D. Tex. December 31, 2021), and State of Louisiana, et al. v. Becerra, et al., Case No. 3:21-cv-04370-TAD-KDM (W.D. La. January 1, 2022).
The ACH Rule attempted to add vaccine and masking mandates to existing “Head Start Program Performance Standards” the Secretary of the Health and Human Services Department (“HHS”) imposed, a federal Cabinet-level agency. Facilities are required to comply with “Head Start Program Performance Standards” to continue to receive federal funding for their Head Start programs. The Rule, which took effect on November 30, 2021, required:
- “Universal masking” in all indoor settings for all individuals aged 2 years and older except for when individuals are eating or drinking, are napping, are unable to wear a mask due to a disability under the Americans with Disabilities Act or is a child with special health care needs.
- Masking for those not fully vaccinated when the individual is indoors, or when the individual is outdoors in crowded settings or during activities that involve sustained close contact with other people.
- Full vaccination by January 31, 2022 for all Head Start staff, volunteers, and certain contractors who work in classrooms or directly with children, unless the individual is exempt because a vaccine is medically contraindicated, requires a delay in vaccination due to medical necessity, or is legally entitled to an accommodation based on religious beliefs or medical disability.
In Texas, et al. v. Becerra, the court found that plaintiffs had demonstrated a substantial likelihood of success on the merits of their claim against the mandate, and that imposition of the mandate would cause a substantial threat of harm to plaintiffs. The court decided that the Rule exceeded the statutory authority Congress had granted to HHS. Furthermore, the court held that the plain language of the statutory provisions HHS relied upon do not authorize issuance of mask and vaccine mandates. This is because such mandates do not relate to the performance of the Head Start program, such as the program’s “administrative or financial management standards,” or the “condition and location of the program’s facilities.”
Additionally, even if the mandates modified performance standards of the Head Start program, the court held that the federal agency did not follow the appropriate administrative procedures required to modify its standards. The court found HHS failed to consult with many of the experts identified in the statute as necessary stakeholders, there was not good cause to issue the Rule without public notice and comment given the delayed deadline for compliance with the Rule, and that the Rule was arbitrary and capricious by adopting a one-size-fits-all approach with no end date.
Based on the foregoing, the Court issued an injunction ceasing implementation and enforcement of the Rule in the state of Texas.
In Louisiana, et al. v. Becerra, 24 states sought to enjoin the same vaccine and mask mandate. Citing to President Ronald Reagan’s famous quip at a 1986 news conference that “the nine most terrifying words in the English language are, ‘I’m from the government and I’m here to help’,” the court first found that all 24 states had both individual and quasi-sovereign interests to protect, including protecting its citizens from requiring to submit to vaccinations and/or mask mandates. As proper plaintiffs, the court then held that plaintiffs had established a likelihood of success on the merits based on similar grounds as the court found in Texas, et al. v. Becerra, et al. Specifically, the court held the federal agency lacked authority to issue the mandate, and that the Rule violated the Administrative Procedures Act’s notice-and-comment requirements. Additionally, the court in Louisiana, et al. held separately that the Rule violated the 10th Amendment of the U.S. Constitution, in that states maintain the authority to enact public health requirements pursuant to their state powers. As such, the court enjoined implementation and enforcement of the Rule in the 24 states that appeared as plaintiffs in the action.
The 24 states subject to the Court’s injunction are: Louisiana, Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, West Virginia, and Wyoming.
These injunctions remain in effect during the pendency of the litigation until the matters are heard on the merits by the respective courts. It is anticipated, as with other instances where the Biden Administration’s mandates have been met with defeat, that the Administration will seek an immediate appeal to lift the respective injunctions.
Unfortunately for the Administration, both the District Courts who issued opinions last week sit in the Fifth Circuit Court of Appeals, the same court that enjoined the OSHA ETS imposing vaccination requirements on private employers. As such, the Administration will have a longer procedural “road to hoe” to reach a court more amenable to the Administration’s position.