Texas v. Becerra
| Decision Date | 31 March 2023 |
| 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 |
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. HHS's new rule mandated COVID-19 vaccination for staff and near-universal masking. Because there was a substantial likelihood that the agency's action was unauthorized and procedurally improper, the Court preliminarily enjoined implementation and enforcement of the rule. HHS did not appeal, and it has since removed the masking requirement, but the vaccine mandate remains. Now both sides seek summary judgment. The parties largely restate arguments made during the preliminary-injunction stage, in addition to briefing the effect of Biden v Missouri, which issued after the Court's injunction and upheld HHS's healthcare-worker vaccine mandate. After careful consideration-and because Biden v. Missouri involved materially different statutory text and context-the Court reaches the same conclusion it did earlier. The Court grants summary judgment for the plaintiffs because (1) no permissible construction of the Head Start Act could authorize the rule; (2) HHS failed to follow proper rulemaking procedures; and (3) the rule is arbitrary and capricious. Thus, the Court vacates the rule, and binding precedent makes clear that vacatur should not be limited to the parties but is rather universal.
The wisdom of Head Start's rule is not before the Court-only its legality. If the people, through Congress, wish to impose a vaccine mandate on Head Start programs, they may do so by passing a law. But an agency can do only what Congress authorizes it to do. Regardless of how well intentioned HHS's attempt here to shoehorn the vaccine mandate into statutory language authorizing modification of Head Start's administrative, financial, and facility-management standards goes too far. Equally fatal to the rule is the agency's decision to implement it without the necessary public notice and comment, consultation with stakeholders, and reasonable explanation. Under these circumstances, the law requires the Court to vacate the rule and remand the matter to HHS.
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 providing educational, nutritional, social, health, 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. 1-3 at 3. Texas Tech operates an Early Head Start program, which is offered for children under age three. Dkt. No. 1-4 at 2; see 42 U.S.C. § 9840a. In 2021, HHS awarded $842,280,184 in grants to Texas Head Start programs. Dkt. No. 1-2 at 35. LISD and Texas Tech University received a portion of this funding for their programs. Id. at 2, 9-10, 17, 20, 26, 30, 33.
In response to the COVID-19 pandemic, the Office of Head Start (OHS) allowed local providers to adjust their services as necessary depending on community conditions and needs. Dkt. Nos. 5-9 at 2-3; 27 at 4 (); 86 Fed.Reg. at 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 [has] provided needed flexibilities and guidance that allowed programs to adapt services based on the changing health conditions in their communities.” Dkt. No. 56 at 91. As a result, while some Head Start programs offered virtual and remote services, “[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 92. In fact, OHS reported that “[a]lmost one third of children served in Head Start programs before the pandemic-approximately 250,000-ha[d] not received services to date.” Id. at 93. Thus, OHS's May 2021 guidance instructed its in-person programs “to continue serving children in person, as local health conditions allow.” Id. at 91. OHS also made clear that the virtual programs “[we]re expected to move to in-person services, as local health conditions allow.” Id. at 92.
According to the CDC, OHS's flexible, community-level approach to early childhood education during the pandemic was successful. As the CDC stated in its report, “[s]ince 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. 1-3 at ¶ 4. 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] Stating that “our patience is wearing thin” with the unvaccinated, the President asserted that “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,” explaining 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) (). As its name suggests, the Rule's stated 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 required “universal masking for all individuals aged 2 years and older,” with limited exceptions, 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 were required “outdoors in crowded settings or during activities that involve sustained close contact with other people.” 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. Citing 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 (). The mask requirement was effective immediately, while the vaccine mandate required compliance by January 31, 2022. Id. at 68,060-62. Programs that refused to implement the Rule's dual mandates risked losing their Head Start funding entirely. See 42 U.S.C. § 9836a(e)(1)(C); 45 C.F.R. § 1304.5 (2023) ().
Plaintiffs-the State of Texas and LISD-filed this action on December 10 2021, seeking a Court order enjoining the Rule's enforcement and setting aside the Rule. Dkt. No. 1. The plaintiffs allege that several statutory and constitutional defects render the Rule procedurally and substantively invalid. Id. Just a few days later, the plaintiffs filed a motion seeking a temporary restraining order and a preliminary injunction. Dkt. Nos. 6; 8. The defendants then appeared through counsel. Dkt. No. 14. The Court set an expedited briefing schedule (Dkt. No. 15) and held an evidentiary hearing to allow the parties to offer evidence and argument (Dkt. Nos. 40; 41).
During the evidentiary hearing, the defendants made several relevant concessions. First, they noted that the vaccine and mask...
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