Court filing
Motion - Scotus
Full text
No. 21A-241
In the Supreme Court of the United States
XAVIER BECERRA., SECRETARY, UNITED STATES
DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL.,
APPLICANTS,
v.
STATE OF LOUISIANA, ET AL.
On Application for A Stay of the Injunction Issued by the
United States District Court for the Western District of
Louisiana Pending Appeal to the United States Court of
Appeals for the Fifth Circuit and Further Proceedings in
this Court
MOTION FOR LEAVE TO FILE AND BRIEF OF
SERVICE EMPLOYEES INTERNATIONAL UNION,
AMERICAN FEDERATION OF TEACHERS, AND
AMERICAN FEDERATION OF STATE, COUNTY,
AND MUNICIPAL EMPLOYEES AS AMICI CURIAE
IN SUPPORT OF APPLICANTS
NICOLE G. BERNER BARBARA J. CHISHOLM
CLAIRE PRESTEL Counsel of Record
RENEE M. GERNI JONATHAN ROSENTHAL
SERVICE EMPLOYEES ALTSHULER BERZON LLP
INTERNATIONAL UNION 177 Post St., Ste. 300
1800 Massachusetts Ave. N.W. San Francisco, CA 94108
Washington, DC 20036 (415) 421-7151
Attorneys for Amicus Curiae bchisholm@altber.com
SEIU Attorneys for Amici Curiae
Mosaic - (301) 927-3800 - Cheverly, MD
49261_Ltrhd.indd 1 6/11/08 12:44:0
DAVID J. STROM JUDITH E. RIVLIN
DANIEL J. MCNEIL TEAGUE P. PATERSON
AMERICAN FEDERATION KYLE C. CAMPBELL
OF TEACHERS AMERICAN FEDERATION
555 New Jersey Ave. OF STATE, COUNTY, AND
N.W. MUNICIPAL EMPLOYEES
Washington, DC 20001 1625 L Street N.W.
Attorneys for Amicus Washington, D.C. 20036
Curiae AFT Attorneys for Amicus
Curiae AFSCME
i
MOTION FOR LEAVE TO FILE
Proposed amici curiae Service Employees
International Union (SEIU) et al. respectfully move
for leave to file a brief in support of the federal
government and its stay application and to file the
enclosed brief without 10 days’ advance notice to the
parties of amici’s intent to file. See Sup. Ct. R. 37.2(a).
Respondents do not oppose the filing of this brief, and
the federal applicants take no position on it. 1
INTERESTS OF MOVANTS
SEIU is a labor organization representing
approximately two million working men and women
in the United States, Canada, and Puerto Rico. SEIU
represents hundreds of thousands of healthcare
workers, and has advocated since the beginning of the
Covid-19 pandemic for safe working conditions that
allow SEIU members to deliver quality care to their
patients. The preliminary injunction issued by the
district court, by preventing implementation of a
Medicaid and Medicare participation requirement
designed to protect patients in advance of the winter
surge of Covid-19 cases, endangers healthcare
workers in hospitals, skilled nursing facilities, clinics,
and other health facilities throughout the country.
The American Federation of Teachers (AFT), an
affiliate of the AFL-CIO, was founded in 1916. The
AFT represents 200,000 healthcare workers, as well
as other essential frontline workers in public services,
1 No counsel for any party authored this amicus brief in
whole or in part, and no person or entity other than amici curiae,
its members, or its counsel made a monetary contribution
intended to fund the brief’s preparation or submission. Sup. Ct.
R. 37.6.
ii
K-12 education and higher education, totaling 1.7
million members who have worked tirelessly during
the Covid-19 pandemic. Healthcare workers and the
patients they serve are endangered by the
preliminary injunction issued by the district court,
which prevents implementation of a vaccine mandate
for staff of participants in the Medicaid and Medicare
programs.
The American Federation of State, County and
Municipal Employees, AFL-CIO (AFSCME) is a labor
organization of 1.4 million working people who
provide vital public services around the nation.
AFSCME represents workers across the full range of
healthcare occupations, including nurses, doctors,
EMTs, therapists, CNAs and more, in all types of
medical, nursing, mental and behavioral health
facilities and centers, many of which participate in
the Medicaid and Medicare programs. AFSCME
members have been on the front lines of the Covid-19
pandemic, and the district court’s preliminary
injunction needlessly jeopardizes its members’ safety.
Proposed amici have a strong interest in the
outcome of this litigation and respectfully submit that
their perspective will aid this Court’s deliberations.
Given the expedited consideration of this matter of
urgent and national concern, proposed amici also
respectfully request leave to file the enclosed brief
without 10 days’ advance notice to the parties of
intent to file. The court of appeals denied the federal
government’s emergency motion for a stay on
December 15, 2021. The application to this Court for
a stay was filed on December 16, 2021. On December
17, 2021, the Court set a deadline of 4 p.m. on
December 30, 2021, for Respondents’ brief.
iii
Further, in light of the expedited nature of this
matter, proposed amici are providing electronic page
proofs of this motion and attached brief to counsel for
the parties on December 21, with printed booklets to
follow via overnight mail on December 22, 2021.
For the foregoing reasons, SEIU et al. respectfully
request that the Court grant leave to file the enclosed
brief in support of the stay application.
Dated: December 22, 2021 Respectfully submitted,
/s/ Barbara J. Chisholm
NICOLE G. BERNER BARBARA J. CHISHOLM
CLAIRE PRESTEL Counsel of Record
RENEE M. GERNI JONATHAN ROSENTHAL
SERVICE EMPLOYEES ALTSHULER BERZON LLP
INTERNATIONAL UNION 177 Post Street, Ste. 300
1800 Massachusetts San Francisco, CA 94108
Ave. N.W. (415) 421-7151
Washington, DC 20036 bchisholm@altber.com
Attorneys for Amicus Attorneys for Amici Curiae
Curiae SEIU
DAVID J. STROM JUDITH E. RIVLIN
DANIEL J. MCNEIL TEAGUE P. PATERSON
AMERICAN FEDERATION KYLE C. CAMPBELL
OF TEACHERS AMERICAN FEDERATION
555 New Jersey Ave. OF STATE, COUNTY, AND
N.W. MUNICIPAL EMPLOYEES
Washington, DC 20001 1625 L Street N.W.
Attorneys for Amicus Washington, D.C. 20036
Curiae AFT Attorneys for Amicus
Curiae AFSCME
v
TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................... vii
INTERESTS OF AMICI CURIAE ............................. 1
INTRODUCTION ...................................................... 2
ARGUMENT ..............................................................3
I. The Rule Protects Workers As Well As
Patients…… .......................................................3
A. Under-Vaccination Poses Severe Risks
To Healthcare Workers ......................................3
B. Frontline Healthcare Workers Support
The Rule. ............................................................6
II. The Rule is Well Within CMS’s Authority. ..........7
A. The Statutory Text Is Clear ..........................7
B. This Court’s Major Questions
Precedents Do Not Apply .................................12
CONCLUSION .........................................................18
vii
TABLE OF AUTHORITIES
Cases
Alabama Ass’n of Realtors v. Dep’t of Health
& Hum. Servs.,
141 S. Ct. 2485 (2021)....................................13, 16
Alexander v. Sandoval,
532 U.S. 275 (2001)..............................................12
Ali v. Fed. Bureau of Prisons,
552 U.S. 214 (2008)..............................................16
Azar v. Allina Health Servs.,
139 S. Ct. 1804 (2019)..........................................15
Diamond v. Chakrabarty,
447 U.S. 303 (1980)..............................................17
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000)..............................................13
Gonzales v. Oregon,
546 U.S. 243 (2006)..............................................16
Hardt v. Reliance Standard Life Ins. Co.,
560 U.S. 242 (2010)..............................................10
Harris Tr. & Sav. Bank v. Salomon Smith
Barney, Inc.,
530 U.S. 238 (2000)..............................................12
King v. Burwell,
576 U.S. 473 (2015)..............................................13
viii
Lewis v. City of Chicago, Ill.,
560 U.S. 205 (2010)..............................................15
Little Sisters of the Poor Saints Peter and
Paul Home v. Pennsylvania,
140 S. Ct. 2367 (2020)....................................17, 18
Mourning v. Fam. Publications Serv., Inc.,
411 U.S. 356 (1973)..............................................17
Rasulis v. Weinberger,
502 F.2d 1006 (7th Cir. 1974)................................8
Ross v. Blake,
578 U.S. 632 (2016)..............................................12
Sabri v. United States,
541 U.S. 600 (2004)........................................15, 16
United States Forest Serv. v. Cowpasture
River Pres. Ass’n,
140 S. Ct. 1837 (2020)..........................................13
Utility Air Regulatory Group v. EPA,
573 U.S. 302 (2014).................................. 13, 14, 16
Watt v. Energy Action Educ. Found.,
454 U.S. 151 (1981)..............................................14
Yates v. United States,
574 U.S. 528 (2015)..............................................17
Statutes
42 U.S.C. § 1302 ....................................................8, 10
42 U.S.C. § 1395bbb ....................................................9
ix
42 U.S.C. § 1395eee.....................................................9
42 U.S.C. § 1395d ....................................................8, 9
42 U.S.C. § 1395hh......................................................8
42 U.S.C. § 1395i-3 ................................................9, 11
42 U.S.C. § 1395i-4 ......................................................9
42 U.S.C. § 1395x ........................................ 8, 9, 10, 11
42 U.S.C. § 1395rr .....................................................10
42 U.S.C. § 1395k ......................................................10
42 U.S.C. § 1396d ........................................................9
42 U.S.C. § 1395r ........................................................9
42 U.S.C. § 1396u-4.....................................................9
Regulations
42 C.F.R. § 482.42 .....................................................13
51 Fed. Reg. 22,010-01 (1986).............................13, 14
86 Fed. Reg. 61,555-01 (Nov. 5, 2021) ........ 2, 8, 10, 13
Other Authorities
Aaron Richterman et al., Hospital-Acquired
SARS-CoV-2 Infection: Lessons for
Public Health, JAMA (Nov. 13, 2020),
https://jamanetwork.com/journals/jama/f
ullarticle/2773128 ..................................................4
x
Alyson M. Cavanaugh et al., COVID-19
Outbreak Associated with a SARS-CoV-2
R.1 Lineage Variant in a Skilled
Nursing Facility After Vaccination
Program — Kentucky, March 2021 (Apr.
21, 2021), https://
www.cdc.gov/mmwr/volumes/70/wr/mm7
017e2.htm?s_cid=mm7017e2_w ............................5
Jessica Ibiebele et al., Occupational
COVID-19 exposures and secondary
cases among healthcare personnel, Am.
J. of Infection Control (Aug. 8, 2021),
https://www.ncbi.nlm.nih.gov/pmc/articl
es/PMC8349432/ ....................................................4
Eric C. Schneider et al., The U.S. COVID-
19 Vaccination Program at One Year:
How Many Deaths and Hospitalizations
Were Averted?, The Commonwealth
Fund (Dec. 14, 2021),
https://www.commonwealthfund.org/pub
lications/issue-briefs/2021/dec/us-covid-
19-vaccination-program-one-year-how-
many-deaths-and ...............................................5, 6
Lost on the frontline: Thousands of US
healthcare workers died fighting Covid-
19. We counted them and investigated
why, The Guardian (Apr. 8, 2021),
https://www.theguardian.com/us-
news/ng-interactive/2020/aug/11/lost-on-
the-frontline-covid-19-coronavirus-us-
healthcare-workers-deaths-database. ...................3
xi
Our key findings about US healthcare worker
deaths in the
pandemic’s first year, The Guardian (Apr.
8, 2021),
https://www.theguardian.com/us-news/ng-
interactive/2020/dec/22/lost-on-the-
frontline-our-findings-to-date............................3, 4
Brenda Goodman and Andy Miller, A
Disturbing Number of Hospital Workers
Still Unvaccinated, GPB News (June 29,
2021), https://www.gpb.org/news/2021/0
6/29/disturbing-number-of-hospital-
workers-still-unvaccinated ....................................4
Long H. Nguyen et al., Risk of COVID-19
among frontline healthcare worker and
the general community; a prospective
cohort study, medRxiv (May 25, 2020),
https://www.ncbi.nlm.nih.gov/pmc/articl
es/PMC7273299/. ...................................................3
Roni Caryn Rabin, An unvaccinated worker set
off an outbreak at a U.S. nursing home where
most residents were
immunized, New York Times (Apr. 21, 2021),
https://www.nytimes.com/2021/04/21/health/
vaccine-nursing-homes-infections.html ................5
1
INTERESTS OF AMICI CURIAE
Service Employees International Union (SEIU) is
a labor organization representing approximately two
million working men and women in the United States,
Canada, and Puerto Rico. SEIU represents hundreds
of thousands of healthcare workers, and has
advocated since the beginning of the Covid-19
pandemic for safe working conditions that allow SEIU
members to deliver medical care to their patients.
The preliminary injunction issued by the district
court, by preventing implementation of a Medicaid
and Medicare participation requirement designed to
protect patients in advance of the winter surge of
Covid-19 cases, endangers healthcare workers in
hospitals, skilled nursing facilities, clinics, and other
health facilities throughout the country.
The American Federation of Teachers (AFT), an
affiliate of the AFL-CIO, was founded in 1916. The
AFT represents 200,000 healthcare workers, as well
as other essential frontline workers in public services,
K-12 education and higher education, totaling 1.7
million members who have worked tirelessly during
the Covid-19 pandemic. Healthcare workers and the
patients they serve are endangered by the
preliminary injunction issued by the district court,
which prevents implementation of a vaccine mandate
for staff of participants in the Medicaid and Medicare
programs.
2
The American Federation of State, County and
Municipal Employees, AFL-CIO (AFSCME) is a labor
organization of 1.4 million working people who
provide vital public services around the nation.
AFSCME represents workers across the full range of
healthcare occupations, including nurses, doctors,
EMTs, therapists, CNAs and more, in all types of
medical, nursing, mental and behavioral health
facilities and centers, many of which participate in
the Medicaid and Medicare programs. AFSCME
members have been on the front lines of the Covid-19
pandemic, and the district court’s preliminary
injunction needlessly jeopardizes its members’ safety.
Amici have a strong interest in the outcome of this
litigation and respectfully submit that their
perspective will aid this Court’s deliberations.
INTRODUCTION
Amici submit this brief to highlight the real-life
experiences of healthcare workers on the frontlines of
the Covid-19 pandemic who have experienced the
dangers of under-vaccination firsthand and who
strongly support vaccination for staff members at
healthcare facilities. Amici also underscore the
importance of respecting the statutory authority
vested in the Center for Medicare and Medicaid
Services (CMS) to promulgate a Rule that protects the
health and safety of Medicare and Medicaid patients.
See Medicare and Medicaid Programs; Omnibus
COVID–19 Health Care Staff Vaccination, 86 Fed.
Reg. 61,555-01 (Nov. 5, 2021). The district court
injunction substitutes that court’s views on
epidemiology for the considered and reasoned
judgment of CMS, the very agency Congress charged
with establishing minimum necessary requirements
3
to ensure the health and safety of individuals who
receive health services at facilities participating in
the federal Medicare and Medicaid programs.
ARGUMENT
1. The Rule Protects Workers As Well As
Patients.
A. Under-Vaccination Poses Severe Risks to
Healthcare Workers.
The Covid-19 pandemic has placed an
unprecedented strain on the healthcare industry, and
on healthcare workers in particular. It has been
understood since the early months of the pandemic
that healthcare workers face heightened risk of
contracting Covid-19 relative to the general
population. 2 More than 3,600 healthcare workers in
the U.S. died during the first year of the pandemic. 3
More than half of those workers were younger than
60 years old; more than half were people of color; more
than half worked in healthcare facilities other than
hospitals; and the highest number of those who died
were nurses and healthcare support staff, many of
whom are lower-paid relative to other medical staff. 4
2 Long H. Nguyen et al., Risk of COVID-19 among frontline
healthcare worker and the general community; a prospective
cohort study, medRxiv (May 25, 2020),
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7273299/.
3 Lost on the frontline: Thousands of US healthcare workers
died fighting Covid-19. We counted them and investigated why,
The Guardian (Apr. 8, 2021), https://www.theguardian.com/us-
news/ng-interactive/2020/aug/11/lost-on-the-frontline-covid-19-
coronavirus-us-healthcare-workers-deaths-database.
4 Our key findings about US healthcare worker deaths in the
pandemic’s first year, The Guardian (Apr. 8, 2021),
https://www.theguardian.com/us-news/ng-
Footnote continued on next page
4
Many of the risks to healthcare workers come
from lax policies that fail to adequately protect both
workers and patients, and the greatest transmission
risks in hospitals often come from workers in facilities
without sufficient enforcement of safety protocols. 5
This is true even where universal masking policies
have been implemented. For example, at one provider
in North Carolina, “unmasked exposure to another
health care worker rather than exposure to known
infected patients resulted in the most [Covid-19] cases
among staff after implementation of universal
masking.” 6 Recent research has similarly suggested
that healthcare workers are more likely to contract
Covid-19 from co-workers than from patients. 7
In the more recent months of the pandemic,
outbreaks have often been tied to under-vaccination
among healthcare workers. This past summer, during
an outbreak at a Maine hospital, four of the first five
staff members to test positive had not been fully
vaccinated. 8 And at a nursing home in Kentucky, 26
interactive/2020/dec/22/lost-on-the-frontline-our-findings-to-
date.
5 Aaron Richterman et al., Hospital-Acquired SARS-CoV-2
Infection: Lessons for Public Health, JAMA (Nov. 13, 2020),
https://jamanetwork.com/journals/jama/fullarticle/2773128.
6 Id. (quoting Sonali Advani et al., Are we forgetting the
“universal” in universal masking? current challenges and future
solutions, Infection Control & Hospital Epidemiology (July 16,
2020)).
7 Jessica Ibiebele et al., Occupational COVID-19 exposures
and secondary cases among healthcare personnel, Am. J. of
Infection Control (Aug. 8, 2021),
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8349432/.
8 Brenda Goodman and Andy Miller, A Disturbing Number
of Hospital Workers Still Unvaccinated, GPB News (June 29,
2021), https://www.gpb.org/news/2021/06/29/disturbing-
number-of-hospital-workers-still-unvaccinated.
5
patients and 20 healthcare workers were infected in
an outbreak set off by a single unvaccinated worker. 9
As one group of researchers put it, “[t]o protect
[nursing home] residents, it is imperative that
[healthcare workers], as well as . . . residents, be
vaccinated.” 10
Covid-19 vaccines are extraordinarily effective.
One study estimated that the U.S.’s vaccination
program had prevented more than 10.3 million
hospitalizations, and more than 1.1 million additional
deaths by November 2021. 11 Without vaccines, daily
deaths could have jumped to as high as 21,000 per
day—more than 5.2 times the level of the record
peak. 12 As of October 2021, rates of hospitalization
among unvaccinated adults were nearly 12 times the
rates for fully vaccinated adults. 13 Nonetheless, as the
study’s authors noted, “[e]ven the 2.6 million COVID-
related hospitalizations that occurred during 2021
9 Roni Caryn Rabin, An unvaccinated worker set off an
outbreak at a U.S. nursing home where most residents were
immunized, New York Times (Apr. 21, 2021),
https://www.nytimes.com/2021/04/21/health/vaccine-nursing-
homes-infections.html.
10 Alyson M. Cavanaugh et al., COVID-19 Outbreak
Associated with a SARS-CoV-2 R.1 Lineage Variant in a Skilled
Nursing Facility After Vaccination Program — Kentucky, March
2021 (Apr. 21, 2021),
https://www.cdc.gov/mmwr/volumes/70/wr/mm7017e2.htm?s_ci
d=mm7017e2_w.
11 Eric C. Schneider et al., The U.S. COVID-19 Vaccination
Program at One Year: How Many Deaths and Hospitalizations
Were Averted?, The Commonwealth Fund (Dec. 14, 2021),
https://www.commonwealthfund.org/publications/issue-
briefs/2021/dec/us-covid-19-vaccination-program-one-year-how-
many-deaths-and.
12 Id.
13 Id.
6
placed an enormous strain on hospitals, with many
staff lost not only to the virus but also to exhaustion
and burnout.” 14 The study concluded that “[a]s the
Omicron variant begins to spread and the Delta
variant surge continues,” vaccination has
“tremendous power . . . to reduce disease and death
from COVID-19.” 15
B. Frontline Healthcare Workers Support the
Rule.
Toni, an SEIU 1199NE New England union
member, has been a Certified Nurse’s Aide at St.
Joseph’s Center, a Medicare- and Medicaid-certified
facility in Trumbull, Connecticut, for thirty-one years.
She recalls that before Covid-19 vaccines were
available, her facility faced terrible conditions—the
virus “hit [her] floor drastically,” and dozens of
residents died from Covid-19. The staff were not safe:
Toni herself was one of the first people to contract
Covid-19, and then many other employees also got
sick. Tragically, some staff members carried Covid-19
home to their families, and some family members died
from the virus. For Toni, the lack of vaccines during
that difficult time meant that she had to go months at
a time without seeing her children and grandchildren,
for fear of spreading the virus.
Toni strongly supports requiring healthcare
staff to be vaccinated. She explains that relying solely
on personal protective equipment is dangerous
because it is a strain, hard to wear, and does not
provide complete protection. After Connecticut set
vaccine requirements for long-term care facilities,
100% of her co-workers are now vaccinated. Toni says
14 Id.
15 Id.
7
requiring vaccination is a “no-brainer,” because she
has seen the terrible effects of under-vaccination:
“The proof was in the pudding: we saw people dying.”
Sophia Colley, an SEIU 1199 United
Healthcare Workers East union delegate and officer,
has been a Certified Nursing Assistant at Titusville
Rehab & Nursing Center, a Medicare- and Medicaid-
certified facility in Titusville, Florida, for more than
thirty years. She explains that earlier in the
pandemic, especially after the death of a staff member
from Covid-19, many co-workers were “scared to come
to work,” and many stayed away entirely out of fear
of contracting Covid-19 at work and passing it on to
their families. When vaccines became available, many
staff members were still afraid. But as vaccination
rates have risen at the facility, more and more
workers have felt safe to return to work and care for
their patients.
In Sophia’s view, from working at her facility
and speaking with other healthcare workers, vaccine
mandates have an extremely important role to play—
alongside PPE policies, one-on-one conversations,
encouragement, and education—in making skilled
nursing facilities safe and effective in the face of an
ongoing pandemic. As she says, getting vaccinated
protects your co-workers as well as “the residents that
you’re taking care of.” She is proud of her facility,
where 98 percent of staff are now vaccinated.
II. The Rule Is Well Within CMS’s Authority.
A. The Statutory Text Is Clear.
The district court’s injunction is based on
speculations about Congressional intent without any
grounding in the actual, relevant statutory text.
Indeed, the district court virtually ignores Congress’s
8
text in conducting its cursory statutory
interpretation. But that text leaves no doubt that
Congress granted CMS the authority to issue the
Rule.
With respect to both the Medicare and Medicaid
programs, Congress has commanded the Secretary of
Health and Human Services to “make and publish
such rules and regulations . . . as may be necessary to
the efficient administration of the functions with
which [he] is charged[.]” 42 U.S.C. § 1302(a).
Similarly, Congress requires the Secretary to
“prescribe such regulations as may be necessary to
carry out the administration of [Medicare] insurance
programs[.]” 42 U.S.C. § 1395hh(a)(1).
More specifically, Congress has instructed the
Secretary to set health and safety standards for
providers and suppliers who participate in the
Medicare and Medicaid programs. For example,
Congress has provided that any “hospital” that
participates in the Medicare program must “meet[]
such . . . requirements as the Secretary finds
necessary in the interest of the health and safety of
individuals who are furnished services in the
institution.” 42 U.S.C. § 1395x(e)(9); see also id.
§ 1395d(a); Rasulis v. Weinberger, 502 F.2d 1006,
1010 (7th Cir. 1974) (noting that Congress has
“explicitly empowered” the Secretary to establish
health and safety standards to protect hospital
patients).
As carefully discussed in the Rule, see 86 Fed.
Reg. at 61,567, 61,575–61,583, Congress has granted
the Secretary this same or similar authority with
respect to all of the participating providers included
within the Rule’s scope. See 42 U.S.C. § 1395x(f)(2)
(same authority for participating psychiatric
9
hospitals); id. §§ 1395x(o), 1395bbb(b) (same
authority for participating home health agencies); id.
§ 1395x(p)(4)(A)(v) (same authority for participating
clinics and rehabilitation agencies providing
outpatient physical therapy); id. § 1395x(aa)(2)(k)
(same authority for participating rural health clinics);
id. § 1395x(dd)(2)(G) (same authority for
participating hospice programs); id.
§ 1395x(ff)(3)(B)(iv) (same authority for participating
community mental health centers); id. § 1395eee(f)(4)
(same authority for participating programs of all-
inclusive care for the elderly); id. § 1395x(cc)(2)(J)
(same authority for participating comprehensive
outpatient rehabilitation facilities, including express
authority to set health and safety standards
“concerning qualifications of personnel in these
facilities”); id. § 1395i-3(d)(4)(B), (f)(1) (authority to
set standards relating to the “health, safety, and well-
being of residents” for participating long-term care
(skilled nursing) facilities); id. § 1396d(h)(1)(A) (same
authority for certain psychiatric residential
treatment facilities participating in Medicaid); id.
§ 1396d(l) (same authority for rural health clinics
participating in Medicaid); id. § 1396d(o) (same
authority for hospice programs participating in
Medicaid); id. § 1396r(d)(4)(B) (same authority for
nursing facilities participating in Medicaid); id.
§ 1396u-4(f)(4) (same authority for programs of all-
inclusive care for the elderly participating in
Medicaid); id. § 1396d(d)(1) (authority to set
standards for participating intermediate care
facilities for individual with intellectual disabilities);
id. § 1395i-4(e)(3) (authority to set criteria for
participating critical access hospitals); id.
§ 1395x(iii)(3)(D)(i)(IV) (authority to set requirements
for participating home infusion therapy suppliers); id.
10
§ 1395rr(b)(1)(A) (authority to set requirements for
participating end-stage renal disease facilities); id.
§ 1395k(a)(2)(F)(i) (authority to specify “health,
safety, and other standards” for participating
ambulatory surgical centers).
Certainly, statutory provisions allowing the
Secretary to establish health and safety requirements
for participating facilities authorize this Rule. See
Hardt v. Reliance Standard Life Ins. Co., 560 U.S.
242, 251 (2010) (“We must enforce plain and
unambiguous statutory language according to its
terms.”). CMS explained at great length in the Rule
why requiring staff working for Medicare and
Medicaid providers to be vaccinated against Covid-19
is both “necessary to the efficient administration” of
these programs, see 42 U.S.C. § 1302(a), and, more
specifically, “necessary in the interest of the health
and safety of individuals” receiving Medicare and
Medicaid services from these providers, see, e.g., id.
§ 1395x(e)(9). CMS reviewed evidence demonstrating
that requiring staff vaccination is critical to
protecting Medicare and Medicaid recipients, because
“[f]ewer infected staff and lower transmissibility
equates to fewer opportunities for transmission to
patients[.]” 86 Fed. Reg. at 61,558. For example, CMS
discussed data showing that “residents of [long-term
care] facilities in which vaccination coverage of staff
is 75 percent or lower experience higher rates of
preventable COVID-19.” Id. And beyond avoidable
Covid-19 transmission from unvaccinated staff, CMS
identified many other risks to patient health and
safety that warranted implementation of the Rule,
including reports that fear of infection from
unvaccinated staff leads patients to forgo seeking
medically necessary care, and evidence that “illnesses
and deaths associated with COVID-19 are
11
exacerbating staffing shortages across the health care
system.” Id. at 61,558–61,559. CMS concluded that
“[h]igher rates of vaccination . . . in health care
settings[] will contribute to a reduction in the
transmission of SARS-CoV-2 and associated
morbidity and mortality across providers and
communities, contributing to maintaining and
increasing the amount of healthy and productive
health care staff, and reducing risks to patients,
resident, clients, and PACE program participants.”
Id. at 61,560.
In short, CMS drew a strong, direct, and evidence-
based link between provider staff vaccine
requirements and the health and safety of program
recipients. There can be no serious argument that the
Rule does not fall within the broad grants of statutory
authority enacted by Congress, which, inter alia,
make it “the duty and responsibility of the Secretary
to assure that requirements which govern the
provision of care . . . are adequate to protect the
health, safety, welfare, and rights of residents[.]” 42
U.S.C. § 1395i-3(f)(1) (standard for participating
nursing homes); see also, e.g., id. § 1395x(e)(9)
(participating hospitals must “meet[] such . . .
requirements as the Secretary finds necessary in the
interest of the health and safety” of patients).
Neither the plaintiff states nor the district court
or court of appeals engage with the plain text of the
statutory authority Congress granted to CMS.
Indeed, the district court did not even quote or cite the
key Congressional language, and instead rested its
injunction on its wholly conclusory assertion that
“[n]one of these statutes give the Government
Defendants the ‘superpowers’ they claim.”
Memorandum Ruling, Louisiana v. Becerra, No. 21-
12
cv-03970 (W.D. La. Nov. 30, 2021) (“District Court
Order”) at 20. This atextual approach to statutory
interpretation has no basis in any decision of this
Court. It is well established that, “in any case of
statutory construction, [the Court’s] analysis begins
with the language of the statute. And where the
statutory language provides a clear answer, it ends
there as well.” Harris Tr. & Sav. Bank v. Salomon
Smith Barney, Inc., 530 U.S. 238, 254 (2000) (internal
quotation and formatting omitted); see also Alexander
v. Sandoval, 532 U.S. 275, 288 (2001) (“We have never
accorded dispositive weight to context shorn of
text. . . . [L]egal context matters only to the extent it
clarifies text.”). The district court erred out of the gate
by making “no attempt to ground its analysis in the
[statutory] language.” Ross v. Blake, 578 U.S. 632,
638 (2016).
Here, there is no way to ground the district court’s
injunction in the statutory text. Congress gave CMS
vital authority to set health and safety standards for
providers who choose to participate in CMS’s
programs. The Rule is a lawful exercise of that
unambiguous authority.
B. This Court’s Major Questions Precedents
Do Not Apply.
Instead of beginning its statutory interpretation
with the text, the district court began—and ended—
with the idea that it could make its own assessment
of whether the questions presented by the Rule were
politically significant, such that it could ignore
common rules of statutory construction.
This Court has recognized that an agency’s
exercise of regulatory authority may sometimes be of
such extraordinary or “vast economic and political”
13
significance that a court should hesitate before
concluding that Congress intended to house such
sweeping authority in an ambiguous statutory
provision. See Alabama Ass’n of Realtors v. Dep’t of
Health & Hum. Servs., 141 S. Ct. 2485, 2489 (2021);
King v. Burwell, 576 U.S. 473, 485–486 (2015); Utility
Air Regulatory Group v. EPA (UARG), 573 U.S. 302,
324 (2014); FDA v. Brown & Williamson Tobacco
Corp., 529 U.S. 120, 159 (2000). The Court has
similarly required a clear statement from Congress
before interpreting a statute to “significantly alter the
balance between federal and state power and the
power of the Government over private property.”
United States Forest Serv. v. Cowpasture River Pres.
Ass’n, 140 S. Ct. 1837, 1850 (2020).
As an initial matter, on its face, CMS’s Rule is not
the sort of extraordinary exercise of authority that
should prompt judicial skepticism. As discussed
above, the Rule comfortably falls within a precise
grant of Congressional authority—the authority to
set health and safety standards for providers
participating in the Medicare and Medicaid
programs. It is difficult to imagine a regulation that
is more concerned with patient health and safety than
a regulation requiring the staff serving those patients
to receive a highly effective vaccine against a virus
that has caused more than 800,000 deaths in less
than two years—“the deadliest disease in American
history.” 86 Fed. Reg. at 61,556. CMS has
longstanding and unquestioned authority to set
health and safety standards in operating these multi-
billion-dollar programs, and indeed already sets such
standards related to controlling the spread of
infectious disease. See, e.g., 42 C.F.R. § 482.42; see
Medicare and Medicaid Programs; Conditions of
Participation for Hospitals, 51 Fed. Reg. 22,010-01,
14
22,027 (1986) (placing “accountability on hospitals to
prevent, control, and report hospital infections and
communicable diseases”).
Thus, this is a case in which a federal agency is
regulating: (i) recipients of Medicare and Medicaid
funding that are already subject to a detailed
regulatory scheme administered by this same agency;
(ii) in an area (controlling the spread of infectious
disease) in which the agency has regulated these
same entities for decades; (iii) under statutes that the
agency regularly relies upon to regulate on the same
topic. These circumstances bear no resemblance to
those in which an agency has unduly stretched a
narrow statutory provision to “bring about an
enormous and transformative expansion in [its]
regulatory authority,” UARG, 573 U.S. at 324.
The fact that CMS has not had reason in the past
to issue the precise regulation at issue here—a
requirement that provider staff be vaccinated against
a particular virus—in no way changes the analysis.
CMS has never issued such a regulation because CMS
has never before faced a situation in which high rates
of non-vaccination among provider staff posed a major
risk to the health and safety of Medicare and
Medicaid patients. Congress obviously could not have
foreseen this precise situation when it enacted the
statutory provisions governing Medicare and
Medicaid, but it did not need to, since it gave the
Secretary broad authority to set health and safety
standards. See Watt v. Energy Action Educ. Found.,
454 U.S. 151, 162 (1981) (“If Congress meant to
restrain the Secretary[’s] discretion in experimenting
with the various [policy options], we can expect the
statute to reflect that intent.”). And neither the
plaintiff states nor the courts below offered any
15
interpretation of the text to explain why a regulation
regarding vaccines falls outside the statutory grant of
authority but CMS’s numerous other health and
safety regulations do not. Put simply, the statute
cannot be read to contain a carve-out for regulations
related to vaccines. See Lewis v. City of Chicago, Ill.,
560 U.S. 205, 215 (2010) (“It is not for us to rewrite
the statute so that it covers only what we think is
necessary to achieve what we think Congress really
intended.”).
In reaching its conclusion that Congress could not
have intended to authorize the Rule, the district court
reasoned that CMS has “used general authority
statutes to mandate COVID-19 vaccines for over 10.3
million healthcare workers.” District Court Order at
20. But CMS relied not only on its general authority
to administer the Medicare and Medicaid programs,
but also on its specific authority to set health and
safety standards—statutory text that the district
court completely failed to engage with. Similarly, the
district court opined that “mandating a vaccine to
10.3 million healthcare workers is something that
should be done by Congress, not a government
agency.” Id. at 21. But there is no legal authority for
that assertion, and in any event the district court
completely failed to explain why the Rule is different
in kind from other regulations affecting large
numbers of Americans, or why the Rule is
unauthorized in the context of the federal
government’s spending on Medicare and Medicaid. 16
16 The Medicare program alone spends $700 billion every
year. Azar v. Allina Health Servs., 139 S. Ct. 1804, 1808 (2019).
The Constitution and this Court’s precedents recognize
Congress’ authority under the Spending Clause “to appropriate
Footnote continued on next page
16
There is also a deeper problem with the
plaintiffs’ (and the district court’s) major questions
analysis. This Court has never suggested that courts
should (or could) impose limitations on Congressional
delegations of authority when those limitations—
based on courts’ own perceptions of the political
sensitivities of a particular issue—have no basis in
the statutory text. See Alabama Ass’n of Realtors, 141
S. Ct. at 2489 (major questions precedents apply “if
the text [is] ambiguous”); UARG, 573 U.S. at 324
(same). This Court has certainly never conducted the
sort of free-floating, anti-textual analysis that
produced the injunction below. The Court has invoked
considerations of “economic and political significance”
to assist in deciding between competing
interpretations of a statute, not to “create ambiguity
where the statute’s text and structure suggest none,”
Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 227
(2008). See, e.g., Brown & Williamson, 529 U.S. at
133–161 (carefully analyzing the statutory scheme
and rejecting the agency’s “strained understanding”
of the statutory language); UARG, 573 U.S. at 322
(rejecting interpretation that “would be inconsistent
with—in fact, would overthrow—the Act’s structure
and design”); Gonzales v. Oregon, 546 U.S. 243, 267
(2006) (rejecting interpretation of agency authority
that was “incongruous with the statutory purposes
and design”).
The plaintiffs’ sole attempt to paint CMS’s
statutory authorization as ambiguous is an argument
that the statutory text instructing the Secretary to set
federal moneys to promote the general welfare,” and to place
conditions on the acceptance of federal funds, even in areas that
are historically of state concern. Sabri v. United States, 541 U.S.
600, 605 (2004).
17
health and safety standards is relatively broad. But
Congress knows how to write statutes narrowly or
broadly, and it is black-letter law that a statute’s use
of broad language does not render it ambiguous per
se. Diamond v. Chakrabarty, 447 U.S. 303, 315 (1980)
(“Broad general language is not necessarily
ambiguous when congressional objectives require
broad terms.”); Yates v. United States, 574 U.S. 528,
564 (2015) (“[W]hen words have a clear definition, and
all other contextual clues support that meaning, the
canons cannot properly defeat Congress’s decision to
draft broad legislation.”); see also Mourning v. Fam.
Publications Serv., Inc., 411 U.S. 356, 369 (1973)
(“Where the empowering provision of a statute states
simply that the agency may ‘make . . . such rules and
regulations as may be necessary to carry out the
provisions of this Act,’ . . . the validity of a regulation
promulgated thereunder will be sustained so long as
it is ‘reasonably related to the purposes of the
enabling legislation.’”).
For instance, in Little Sisters of the Poor Saints
Peter and Paul Home v. Pennsylvania, 140 S. Ct.
2367, 2379–2380 (2020), this Court interpreted a
provision of the Affordable Care Act that required
employers to provide “such additional preventive care
. . . as provided for in comprehensive guidelines
supported by [the Health Resources and Services
Administration (HRSA)].” The Court held that this
provision authorized HRSA to exempt employers with
religious or “sincerely held moral” objections from the
general obligation to provide contraceptive coverage.
Id. at 2380–82. While two Justices doubted that
Congress would have delegated this particular task to
HRSA, see id. at 2406 (Ginsburg, J., dissenting), the
Court held that “‘[o]ur analysis begins and ends with
the text,’” id. at 2380 (majority op.). The Court
18
explained that “[o]n its face . . . the provision grants
sweeping authority to HRSA to craft [its] standards.”
Id. at 2380. “Congress could have limited HRSA’s
discretion in any number of ways, but it chose not to
do so”—and “[i]t is a fundamental principle of
statutory interpretation that absent provisions
cannot be supplied by the courts.” Id. at 2380–81
(internal quotation and formatting omitted). The
Court emphasized that courts cannot “impos[e] limits
on an agency’s discretion that are not supported by
the text.” Id. at 2381.
The plaintiff states ask this Court, “[b]y
introducing a limitation not found in the statute, to
alter, rather than to interpret,” the Medicare and
Medicaid statutes. Id. And to the extent the states’
position is fueled by disagreement with the wisdom of
the Rule, “a policy concern cannot justify supplanting
the text’s plain meaning.” Id. CMS followed
Congress’s clear instructions to set health and safety
standards for providers participating in its federal
programs.
CONCLUSION
For the foregoing reasons, the federal
government’s application for a stay should be granted.
19
Dated: December 22, 2021 Respectfully submitted,
NICOLE G. BERNER BARBARA J. CHISHOLM
CLAIRE PRESTEL Counsel of Record
RENEE M. GERNI JONATHAN ROSENTHAL
SERVICE EMPLOYEES ALTSHULER BERZON LLP
INTERNATIONAL UNION 177 Post Street, Ste. 300
1800 Massachusetts San Francisco, CA 94108
Ave. N.W. (415) 421-7151
Washington, DC 20036 bchisholm@altber.com
Attorneys for Amicus Attorneys for Amici
Curiae SEIU Curiae
DAVID J. STROM JUDITH E. RIVLIN
DANIEL J. MCNEIL TEAGUE P. PATERSON
AMERICAN FEDERATION KYLE C. CAMPBELL
OF TEACHERS AMERICAN FEDERATION
555 New Jersey Ave. OF STATE, COUNTY, AND
N.W. MUNICIPAL EMPLOYEES
Washington, DC 20001 1625 L Street N.W.
Attorneys for Amicus Washington, D.C. 20036
Curiae AFT Attorneys for Amicus
Curiae AFSCME
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