Missouri v. Biden

• Decision Date: 29 November 2021
• Docket Number: Case No. 4:21-cv-01329-MTS
• Citation: 571 F.Supp.3d 1079
• Parties: State of MISSOURI, et al., Plaintiffs, v. Joseph R. BIDEN, Jr., in his official capacity as the President of the United States of America, et al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

571 F.Supp.3d 1079

State of MISSOURI, et al., Plaintiffs,

v.Joseph R. BIDEN, Jr., in his official capacity as the President of the United States of America, et al., Defendants.

Case No. 4:21-cv-01329-MTS

United States District Court, E.D. Missouri, Eastern Division.

Signed November 29, 2021

Jesus Armando Osete, Madison McMillian Green, Dean John Sauer, Attorney General of Missouri, Jefferson City, MO, James A. Campbell, Attorney General of Nebraska, Lincoln, NE, for Plaintiff Missouri, State of.

Jesus Armando Osete, Dean John Sauer, Attorney General of Missouri, Jefferson City, MO, James A. Campbell, Attorney General of Nebraska, Lincoln, NE, for Plaintiffs Nebraska, State of, Arkansas, State of, Wyoming, State of, Alaska, State of, South Dakota, State of, North Dakota, State of, New Hampshire, State of.

Jesus Armando Osete, Dean John Sauer, Attorney General of Missouri, Jefferson City, MO, Kurtis K. Wiard, Attorney General of Kansas, Topeka, KS, James A. Campbell, Attorney General of Nebraska, Lincoln, NE, for Plaintiff Kansas, State of.

Jesus Armando Osete, Dean John Sauer, Attorney General of Missouri, Jefferson City, MO, Samuel Paul Langholz, Attorney General of Iowa, Des Moines, IA, James A. Campbell, Attorney General of Nebraska, Lincoln, NE, for Plaintiff Iowa, State of.

Joel L. McElvain, Julie Straus Harris, Michael Drezner, Jonathan D. Kossak, US Department of Justice, Washington, DC, for Defendants.

MEMORANDUM AND ORDER

MATTHEW T. SCHELP, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

This case concerns the Centers for Medicare and Medicaid Services’ ("CMS") federal vaccine mandate on a wide range of healthcare facilities. On November 5, 2021, CMS issued an Interim Final Rule with Comment Period ("IFC") entitled " Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination" (the "mandate"), 86 Fed. Reg. 61,555 (Nov. 5, 2021), revising the "requirements that most Medicare- and Medicaid-certified providers and suppliers must meet to participate in the Medicare and Medicaid programs." 86 Fed. Reg. 61,555 –601. Specifically, the mandate requires nearly every employee, volunteer, and third-party contractor working¹ at fifteen² categories of healthcare facilities to be vaccinated against SARS-CoV-2 ("COVID") and to have received at least a first dose of the vaccine prior to December 6, 2021. See id. at 61,573. On November 10, 2021, Plaintiffs, the States of Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota, and New Hampshire (collectively, "Plaintiffs") filed a Complaint challenging the mandate. Doc. [1]. The Complaint seeks preliminary and permanent injunctive and declaratory relief. On November 12, 2021, Plaintiffs filed a motion for a preliminary injunction, Doc. [6], requesting that this Court issue a preliminary injunction enjoining Defendants from imposing the mandate.

Having fully reviewed the administrative record and submitted material, the Court finds that a preliminary injunction is warranted here.

II. DISCUSSION

A. The Court has jurisdiction.

Defendants argue that this Court "lacks jurisdiction" over Plaintiffs’ claims because "Congress has withdrawn federal-question jurisdiction over claims like this one that arise under the Medicare statute," citing 42 U.S.C. § 405(h), as incorporated by 42 U.S.C. § 1395ii. Doc. [23] at 15–19. The Court does not agree. As Defendants readily concede, "State governments" such as the Plaintiff States are neither "institution[s]" nor "agenc[ies]" "dissatisfied" with the Secretary's determination regarding eligibility or receipt of benefits under 42 U.S.C. § 1395cc(h)(1) and, therefore, "the States³ themselves could not use that statute's vehicle for judicial review." Id. at 19; see Shalala v. Ill. Council on Long Term Care, Inc. , 529 U.S. 1, 16, 120 S.Ct. 1084, 146 L.Ed.2d 1 (2000) (explaining that § 405(h) does not apply if application "would mean no review at all"). In addition, Plaintiffs’ claims that arise under the Medicaid Act—as opposed to the Medicare Act—are not subject to the § 405(h) ’s jurisdictional bar. See Avon Nursing & Rehab. v. Becerra , 995 F.3d 305, 311 (2d Cir. 2021) ("Unlike the Medicare Act, the Medicaid Act does not incorporate the Social Security Act's claim-channeling and jurisdiction-stripping provisions, 42 U.S.C. § 405(g) and (h). Federal courts thus have jurisdiction over claims arising under the Medicaid Act pursuant to 28 U.S.C. § 1331."). Thus, all aspects of the mandate that purport to change a Medicaid regulation are clearly not barred, even under Defendants’ arguments. Nonetheless, the Court finds that it has jurisdiction over claims arising under both Medicare and Medicaid.

B. A preliminary injunction is warranted here.

Plaintiffs seek a preliminary injunction of the mandate's enforcement pending a full judicial review of the mandate's legality. The Court addresses their request today. Whether a court should issue a preliminary injunction involves consideration of (1) the threat of irreparable harm to the movant; (2) the state of the balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest. Dataphase Sys., Inc. v. C L Sys., Inc. , 640 F.2d 109, 113 (8th Cir. 1981). "While no single factor is determinative, the probability of success factor is the most significant." Home Instead, Inc. v. Florance , 721 F.3d 494, 497 (8th Cir. 2013) (internal quotations and citations omitted).

Each of these factors favors a preliminary injunction here.

a. Plaintiffs demonstrate a likelihood of success on the merits.

i. Congress did not grant CMS authority to mandate the vaccine.

Plaintiffs are likely to succeed in their argument that Congress has not provided CMS the authority to enact the regulation at issue here. "[A]n agency literally has no power to act, let alone pre-empt⁴ the validly enacted legislation of a sovereign State, unless and until Congress confers power upon it."

La. Pub. Serv. Comm'n v. FCC , 476 U.S. 355, 357, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986). While the Court agrees Congress has authorized the Secretary of Health and Human Services (the "Secretary") general authority to enact regulations for the "administration" of Medicare and Medicaid and the "health and safety" of recipients, the nature and breadth of the CMS mandate requires clear authorization from Congress—and Congressed has provided none.⁵ See Ala. Ass'n of Realtors v. Dep't of Health & Hum. Servs. , ––– U.S. ––––, 141 S. Ct. 2485, 2486, 210 L.Ed.2d 856 (2021) ("It would be one thing if Congress had specifically authorized the action that the CDC has taken. But that has not happened."). Courts have long required Congress to speak clearly when providing agency authorization if it (1) intends for an agency to exercise powers of vast economic and political significance; (2) if the authority would significantly alter the balance between federal and state power; or (3) if an administrative interpretation of a statute invokes the outer limits of Congress’ power. Any one of those fundamental principles would require clear congressional authorization for this mandate, but here, all three are present. Even in exigency, the Secretary cannot "bring about an enormous and transformative expansion in [his] regulatory authority without clear congressional authorization." See Util. Air Reg. Grp. v. EPA , 573 U.S. 302, 324, 134 S.Ct. 2427, 189 L.Ed.2d 372 (2014).

1. Given the vast economic and political significance of this vaccine mandate, only a clear authorization from Congress would empower CMS to act.

First , Congress must "speak clearly when authorizing an agency to exercise powers of ‘vast economic and political significance.’ " Ala. Ass'n of Realtors , 141 S. Ct. at 2489 (quoting Util. Air Reg. , 573 U.S. at 324, 134 S.Ct. 2427 ). The mandate's economic cost is overwhelming. CMS estimates that compliance with the Mandate—just in the first year—is around 1.38 billion dollars. 86 Fed. Reg. at 61,613. Those costs, though, do not take into account the economic significance this mandate has from the effects on facilities closing or limiting services and a significant exodus of employees that choose not to receive a vaccination

.⁶ Likewise, the political significance of a mandatory coronavirus vaccine is hard to understate, especially when forced by the heavy hand of the federal government. Indeed, it would be difficult to identify many other issues that currently have more political significance at this time. Had Congress wished to assign this question fraught with deep economic and political significance to CMS, "it surely would have done so expressly." See

King v. Burwell , 576 U.S. 473, 486, 135 S.Ct. 2480, 192 L.Ed.2d 483 (2015). "It is especially unlikely that Congress would have delegated this decision to [CMS], which has no expertise in crafting" vaccine mandates. Id.

2. Because this mandate significantly alters the balance between federal and state power, only a clear authorization from Congress would empower CMS.

Second , Congress must use "exceedingly clear language if it wishes to significantly alter the balance between federal and state power." Ala. Ass'n of Realtors , 141 S. Ct. at 2489 (quoting United States Forest Service v. Cowpasture River Preservation Assn. , ––– U.S. ––––, 140 S. Ct. 1837, 1850, 207 L.Ed.2d 186 (2020) ); see also United States v. Bass , 404 U.S. 336, 349, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). The regulation at issue alters that balance because it requires vaccination

, which CMS has never attempted to do, for millions of individuals who would otherwise be outside the reach of the federal government. This concern is "heightened" since CMS's "administrative interpretation alters the federal-state framework by permitting federal encroachment upon a traditional state power." Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Engineers , 531 U.S. 159, 173, ...