United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit ___________ FILED December 15, 2021 No. 21-30734 Lyle W. Cayce ___________ Clerk State of Louisiana; State of Montana; State of Arizona; State of Alabama; State of Georgia; State of Idaho; State of Indiana; State of Mississippi; State of Oklahoma; State of South Carolina; State of Utah; State of West Virginia; Commonwealth of Kentucky; State of Ohio, Plaintiffs—Appellees, versus Xavier Becerra, Secretary, U.S. Department of Health and Human Services; United States Department of Health and Human Services; Chiquita Brooks-Lasure; Centers for Medicare and Medicaid Services, Defendants—Appellants. ______________________________ Appeal from the United States District Court for the Western District of Louisiana USDC No. 3:21-CV-3970 ______________________________ Before Southwick, Graves, and Costa, Circuit Judges. Per Curiam: The Secretary of the Department of Health and Human Services and other federal government defendants move to stay a district court’s No. 21-30734 nationwide, preliminary injunction that bars enforcement of one of the federal COVID-19 vaccination mandates. The enjoined mandate applies to the staff of many Medicare- and Medicaid-certified providers such as hospitals, long-term care facilities, home-health agencies, and hospices. We DENY the motion insofar as the order applies to the 14 Plaintiff States. We GRANT a stay as to the order’s application to any other jurisdiction. Briefly, we will explain. When analyzing a request to stay a district court’s preliminary injunction, we are to consider the following factors: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Veasey v. Perry, 769 F.3d 890, 892 (5th Cir. 2014) (quoting Nken v. Holder, 556 U.S. 418, 426 (2009)). Likelihood of success and irreparable injury to the movant are the most significant factors. Id. The district court cited a number of reasons for enjoining the rule. Especially in light of a recent, precedential opinion from this court, see BST Holdings, L.L.C. v. OSHA, 17 F.4th 604 (5th Cir. 2021), it appears that the Secretary will have the most difficulty overcoming the part of the ruling that applied the “major questions doctrine.” We thus focus on that issue in assessing whether the Secretary has made a strong showing of likely success. The district court held that the Secretary’s decision to enter the vaccine regulatory space for the first time implicates what some courts and commentators have called the “major questions doctrine,” though apparently not (yet) so designated in a majority opinion for the Supreme 2 No. 21-30734 Court. 1 It appears to us not so much a new doctrine but a new label for courts’ method of analyzing federal agencies’ novel assertions of authority. For example, the Supreme Court did not give deference to the Food and Drug Administration’s 1996 decision that it had implicit authority under its governing statutes to …
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