Texas v. Becerra

• Decision Date: 31 December 2021
• Docket Number: 5:21-CV-300-H
• Parties: State of TEXAS, et al., Plaintiffs, v. Xavier BECERRA, Secretary of Health and Human Services, et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

577 F.Supp.3d 527

State of TEXAS, et al., Plaintiffs,

v.Xavier BECERRA, Secretary of Health and Human Services, et al., Defendants.

No. 5:21-CV-300-H

United States District Court, N.D. Texas, Lubbock Division.

Signed December 31, 2021

Johnathan Stone, Charles K. Eldred, Amy Lynne Kennedy Wills, Attorney General of Texas, Administrative Law Division, Brent Webster, Edwards Sutarwalla PLLC, Austin, TX, for Plaintiff State of Texas.

Brent Webster, Edwards Sutarwalla PLLC, Thomas A. Albright, Amy S. Hilton, Office of the Attorney General of Texas, Austin, TX, for Plaintiff Lubbock Independent School District.

Michael Patrick Clendenen, Christopher David Edelman, Madeline Marie McMahon, US Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

JAMES WESLEY HENDRIX, UNITED STATES DISTRICT JUDGE

In response to the President's plan to increase COVID-19 vaccinations, the Department of Health and Human Services created two unprecedented conditions on funding for Head Start programs, which provide education-related services to needy children. The agency's Rule requires Head Start staff to be vaccinated and near-universal masking of children and adults.

It is undisputed that an agency cannot act without Congressional authorization. Thus, the question here is whether Congress authorized HHS to impose these requirements. HHS claims that the mandates are authorized as "program performance standards" related to: "administrative and financial management," "the condition ... of facilities," or "such other standards" the agency "finds to be appropriate." Texas and the Lubbock Independent School District argue that the Act does not authorize such mandates, that irreparable injury would result from them, that HHS failed to comply with the Administrative Procedure Act in adopting the conditions, and that the mandates violate various Constitutional doctrines. They seek an injunction to bar the mandates' enforcement. Because the Court concludes that there is a substantial likelihood that the mandates do not fit within the Head Start Act's authorizing text, that HHS failed to follow the APA in promulgating the mandates, and that the mandates are arbitrary and capricious, the Court preliminarily enjoins their enforcement in Texas.

1. Factual and Procedural Background

The Department of Health and Human Services (HHS) offers grants to schools, nonprofits, and other local organizations to run Head Start programs. Those programs "promote the school readiness of low-income children" by creating supportive learning environments and by providing health, educational, nutritional, social, and other services to young children and their families. 42 U.S.C. § 9831. Many Head Start programs are operated through local school districts, like Lubbock Independent School District (LISD), in the form of pre-K classes. See, e.g. , Dkt. No. 8-3 at 3. Texas Tech operates an Early Head Start program, which is offered for children under age three. Dkt. No. 8-4 at 2; see 42 U.S.C. § 9840a. In 2021, HHS awarded $842,280,184 in grants to Texas Head Start programs. Dkt. No. 8-2 at 35. LISD and Texas Tech University received a portion of this funding. Dkt. Nos. 8-2 at 2, 9, 10, 30; 8-3 at 3; 8-4 at 2.

In response to the COVID-19 pandemic, the Office of Head Start (OHS) allowed local providers to adjust their services as necessary depending community conditions and needs. Dkt. Nos. 8-5 at 2-3; 27 at 4 (listing the OHS May 2021 guidance in the administrative record); 86 Fed. Reg. 68,058 n.66 (citing the guidance in the interim final rule). In its May 2021 guidance, the agency recognized that "[t]o date, OHS provided needed flexibilities and guidance that allowed programs to adapt services based on the changing health conditions in their communities." Dkt. No. 8-5 at 2. As a result, some Head Start programs offered virtual and remote services, but "[m]any programs continued to provide in-person services for children and families throughout the COVID-19 pandemic." Id. OHS knew, however, that "virtual and remote services ... are not an acceptable replacement for in-person comprehensive services." Id. at 3. In fact, OHS reported that "[a]lmost one third of children served in Head Start programs before the pandemic—approximately 250,000—have not received services to date." Id. at 4. Thus, OHS's May 2021 guidance instructed its in-person programs "to continue serving children in person, as local health conditions allow." Id. at 2. OHS also made clear that the virtual programs "are expected to move to in-person services, as local health conditions allow." Id. at 3. According to the CDC, OHS's flexible approach to early childhood education during the pandemic was successful: "Since the COVID-19 pandemic started, Head Start and Early Head Start programs successfully implemented CDC-recommended mitigation strategies and applied other innovative approaches to limit SARS-CoV-2 transmission among children, teachers, and other staff members by allowing maximum program flexibility and allocating financial and human resources."¹

In the 2020–21 school year, LISD implemented a mask mandate in line with Governor Abbott's Executive Order and Texas Education Agency public-health guidance. Dkt. 39-4 at 3. Masks were required for students in fourth grade and above. Id. In the 2021–22 school year, however, LISD decided that masks would be welcome and vaccinations encouraged, but neither would be mandatory. Id. at ¶ 5–6. Before the school year began, 84% of LISD's staff reported having received at least one vaccine dose. Id. at ¶ 6. Of 1,847 active cases since August 18, 2021, 26 were pre-K students and none were pre-K staff. Id. at ¶ 5.

On September 9, 2021, the President announced "a new plan to require more Americans to be vaccinated."² He said that "our patience is wearing thin" with the unvaccinated, and "we must increase vaccinations among the unvaccinated with new vaccination requirements." Id. Those requirements would apply to employers with 100 or more employees, healthcare workers, executive branch federal employees, and "all of nearly 300,000 educators" in the Head Start program. Id. The President did not hide the fact that his school-related mandate "takes on elected officials and states that are undermining you and these lifesaving actions." Id. He said that "if these governors won't help us beat the pandemic, I'll use my power as President to get them out of the way." Id.

On November 30, 2021, the Administration for Children and Families (ACF)—a division of HHS—issued an Interim Final Rule with Comment (Rule) imposing mask and COVID-19 vaccine mandates in Head Start programs. See Vaccine and Mask Requirements to Mitigate the Spread of COVID-19 in Head Start Programs, 86 Fed. Reg. 68,052 (Nov. 30, 2021) (to be codified at 45 C.F.R. pt. 1302). As its name suggests, the Rule's purpose is "to protect the health and safety of Head Start staff, children, and families and to mitigate the spread of SARS–CoV–2 in Head Start programs." Id. at 68,053.

ACF promulgated the Rule by adding the mandates to existing "Head Start Program Performance Standards." Id. at 68,052. Specifically, the Rule requires "universal masking for all individuals aged 2 years and older," with limited exceptions,³ in all indoor settings where Head Start services are provided and in Head Start vehicles. Id. at 68,060. And "for those not fully vaccinated," masks are required "outdoors in crowded settings or during activities that involve sustained close contact with other people." Id. For purposes of the Rule, "being outdoors with children inherently includes sustained close contact for the purposes of caring for and supervising children." Id.

The Rule also requires "all Head Start staff, certain contractors, and volunteers in classrooms or working directly with children to be fully vaccinated," with certain exemptions.⁴ Id. For those granted an exemption from the vaccine requirement, weekly COVID-19 testing is required. Id. at 68,061.

The Rule took effect immediately—November 30, 2021—before public notice-and-comment procedures were followed. Given the threat posed by rising COVID-19 cases and the hope to return fully to in-person instruction in 2022, the Secretary found that there was "good cause" to waive the notice-and-comment procedures normally required when an agency promulgates a regulation. See id. at 68,059 (finding good cause to waive notice-and-comment procedures). The mask requirement was effective immediately, while the vaccine mandate requires compliance by January 31, 2022. Id. at 68,060 –62. Under the Rule, individuals are deemed "fully vaccinated" two weeks after receiving the second dose in a two-dose series (i.e. Moderna and Pfizer) or a single-dose vaccine (i.e. Johnson & Johnson). Id. at 68,060. But, to allow flexibility, staff and volunteers who have received their final dose of a COVID-19 vaccine by January 31, 2022 are "considered to have met the vaccination requirement, even if they have not yet completed the 14-day waiting period." Id. at 68,062. Because the Moderna vaccine requires four weeks in between doses, an unvaccinated person who intends to comply with the Rule by receiving the Moderna vaccine must receive his or her first dose by January 3, 2022. Programs that refuse to implement the Rule's dual mandates risk losing their Head Start funding entirely. See 42 U.S.C. § 9836a(e)(1)(C) ; 45 C.F.R. § 1304.5 (2021) ("Termination and denial of refunding").

Plaintiffs—the State of Texas and the LISD—filed this action on December 10, 2021 seeking to enjoin the Rule's enforcement. Dkt. No. 1. They argue that several statutory and constitutional defects render the Rule procedurally and substantively invalid.

The plaintiffs filed a motion seeking a temporary restraining order and a preliminary injunction on December 14. Dkt. Nos. 6; 8. Two days later, the defendants⁵ appeared through counsel. Dkt. No. 14. Aware of the January 3 deadline for those who would obtain the...