On December 15, 2021, the U.S. Court of Appeals for the Fifth Circuit upheld a district court’s preliminary injunction blocking the CMS vaccine mandate from going into effect in 14 states, including Mississippi. The Fifth Circuit determined that the federal government had failed to demonstrate a strong likelihood of success in overcoming challenges under the “major-questions” doctrine, one of the primary bases for issuing the preliminary injunction. Under this doctrine, federal agencies must show clear Congressional authority to support their “novel assertions of authority.” The Fifth Circuit also cited its recent decision enforcing a preliminary injunction blocking the OSHA vaccine mandate, based in part on a finding that OSHA similarly did not have a strong likelihood of successfully establishing clear Congressional authority for that mandate as required by the “major questions” doctrine.
The Fifth Circuit did disagree with the district court on one key point: the scope of the preliminary injunction staying the CMS mandate. Finding “little justification” had been given by the district court to support a nationwide injunction and noting the value of “the airing of competing views” from other circuits, the Fifth Circuit limited the preliminary injunction to the 14 plaintiff states (Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky, and Ohio).
The federal government reacted quickly, asking the U.S. Supreme Court on December 17th to stay the Fifth Circuit’s preliminary injunction. The federal government argued, in part, that public interest favored allowing the CMS mandate to become effective while the appellate court decides the underlying issues. The states challenging the mandate must respond to the federal government’s application to stay the preliminary injunction by December 30th.
December 30th will be a busy day for those following developments in the vaccine mandate saga. In pending challenges to the OSHA vaccination or testing mandate, the Supreme Court has also set December 30th as the deadline for the federal government to respond to the challenging states’ request to reinstate the preliminary injunction, which was lifted by the Sixth Circuit Court of Appeals.
What do these developments mean for Mississippi facilities covered by the CMS mandate? For now, you can continue to pause any work to implement and enforce the mandatory vaccination policies under the CMS rules published on November 5, 2021. Although you may be required to hit the play button again on that work, the Supreme Court’s briefing schedule indicates that the current pause will continue for at least the remainder of 2021.