Braidwood Mgmt v. Becerra
U.S. Court of Appeals for the Fifth Circuit
Braidwood Mgmt v. Becerra, 104 F.4th 930 (5th Cir. 2024)
Braidwood Mgmt v. Becerra
Opinion
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United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
June 21, 2024
No. 23-10326
Lyle W. Cayce
____________ Clerk
Braidwood Management, Incorporated; John Scott
Kelley; Kelley Orthodontics; Ashley Maxwell; Zach
Maxwell; Joel Starnes,
Plaintiffs—Appellees/Cross-Appellants,
Joel Miller; Gregory Scheideman,
Plaintiffs—Cross-Appellants,
versus
Xavier Becerra, Secretary, U.S. Department of Health and Human
Services, in his official capacity as Secretary of Health and Human Services;
United States of America; Janet Yellen, Secretary, U.S.
Department of Treasury, in her official capacity as Secretary of the Treasury;
Julie A. Su, Acting Secretary, U.S. Department of Labor, in her official
capacity as Secretary of Labor,
Defendants—Appellants/Cross-Appellees.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:20-CV-283
______________________________
Before Willett, Wilson, and Ramirez, Circuit Judges.
Don R. Willett, Circuit Judge:
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The Affordable Care Act requires private insurers to cover certain
kinds of “preventive care,” including contraception, HPV vaccines, and
drugs preventing the transmission of HIV. The plaintiffs are a group of
individuals and businesses who have religious objections to these preventive-
care mandates and challenged them on multiple grounds. They contend,
among other things, that the preventive-care mandates are unlawful because
the agencies that issued them violate Article II of the Constitution, insofar as
their members are principal officers of the United States who have not been
validly appointed under the Appointments Clause. In a series of summary-
judgment rulings, the district court mostly agreed, vacating all agency actions
taken to enforce the mandates under the Administrative Procedure Act and
issuing both party-specific and universal injunctive relief.
Our decision today is something of a mixed bag. With respect to one
of the challenged administrative bodies, the United States Preventive
Services Task Force, we agree that the unreviewable power it wields—the
power to issue preventive-care recommendations that insurers must cover by
law—renders its members principal officers of the United States who have
not been validly appointed under Article II of the United States Constitution.
And because Xavier Becerra, in his capacity as the Secretary of the
Department of Health and Human Services, has not validly cured the Task
Force’s constitutional problems, the district court properly enjoined the
defendants from enforcing the preventive-care mandates to the extent they
came at the recommendation of the Task Force. We think it was error,
however, for the district court to have also vacated all agency actions taken
to enforce the preventive-care mandates and to universally enjoin the
defendants from enforcing them.
With respect to the plaintiffs’ cross-appeal and their Appointments
Clause challenges against the other two administrative bodies at issue in this
case, the Advisory Committee on Immunization Practices and the Health
2
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Resources and Services Administration, we agree with the Government that
Secretary Becerra has the authority to ratify their recommendations and
guidelines, but we reserve judgment on whether he has effectively done so.
The district court had no opportunity to consider the plaintiffs’ arguments
that the Secretary’s ratification memo suffers from multiple defects under
the Administrative Procedure Act, and we decline to consider these
arguments in the first instance.
Accordingly, we AFFIRM in part, REVERSE in part, and
REMAND for further proceedings consistent with this opinion.
I
A
In 2010, Congress passed, and President Obama signed into law, the
Patient Protection and Affordable Care Act (ACA).1 As part of its stated goal
of broadening health insurance coverage, the ACA requires private insurers
to cover certain preventive-care services without “cost sharing”—that is,
without requiring the insured to pay deductibles, copayments, or other out-
of-pocket expenses.2 The ACA does not define “preventive care,” nor does
it provide a list or examples of which preventive-care services must be
covered.3 Instead, it empowers three agencies, all affiliated with the
1
Pub. L. No. 111-148, 124 Stat. 119 (2010).
2
42 U.S.C. § 300gg-13(a) (“A group health plan and a health insurance issuer
offering group or individual health insurance shall, at a minimum provide coverage for and
shall not impose any cost sharing requirements for” four different categories of preventive
care).
3
See generally id.; see also Little Sisters of the Poor Saints Peter & Paul Home v.
Pennsylvania, 591 U.S. 657, 664 (2020) (“The statute itself does not define ‘preventive care
and screenings,’ nor does it include an exhaustive or illustrative list of such services. Thus,
the statute does not explicitly require coverage for any specific form of ‘preventive
care.’”).
3
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Department of Health and Human Services (HHS), to determine what
services are required under four different categories of care.
The first and most important category of mandated coverage for
purposes of this appeal includes “evidence-based items or services that have
in effect a rating of ‘A’ or ‘B’ in the current recommendations of the United
States Preventive Services Task Force.”4 The Task Force is a body of sixteen
volunteers “with appropriate expertise”5 who serve four-year terms and
“periodically convene” to make recommendations on covered preventive-
care services.6 Members of the Task Force are “convened” by the Director
of the Agency for Healthcare Research and Quality7 (a subagency within the
Public Health Service, which in turn is a subagency within HHS). There is,
however, no removal restriction on Task Force members before the
expiration of their terms. The ACA instead provides that “[a]ll members of
the Task Force . . . and any recommendations made by such members, shall
be independent and, to the extent practicable, not subject to political
pressure.”8
The second category of mandated coverage includes “immunizations
that have in effect a recommendation from the Advisory Committee on
Immunization Practices of the Centers for Disease Control and Prevention
4
Id. § 300gg-13(a)(1).
5
42 U.S.C. § 299b-4(a)(1).
6
Act of Dec. 6, 1999, Pub. L. No. 106–129, 113 Stat. 1659, § 915(a)(1). The district
court found that, in practice, Task Force members’ work entailed meeting “three times a
year for two days in Washington, D.C. (paid for by taxpayers),” “frequent” emailing,
“multiple conference calls each month,” and “interaction with stakeholders.” In all,
“members devote approximately 200 hours a year outside of in-person meetings.”
7
42 U.S.C. § 299b-4(a)(1).
8
Id. § 299b-4(a)(6).
4
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with respect to the individual involved.”9 The Advisory Committee on
Immunization Practices, or ACIP, is part of the Public Health Service and is
thus “administered by the Assistant Secretary for Health under the
supervision and direction of the [HHS] Secretary.”10 According to its
charter, ACIP consists of fifteen members who serve four-year terms and are
selected by the HHS Secretary. ACIP is also one of several advisory
committees that report to the CDC Director, who in turn exercises authority
delegated to him by the HHS Secretary.11
The third and fourth categories of mandated coverage include
“evidence-informed preventive care and screenings provided for in the
comprehensive guidelines supported by the Health Resources and Services
Administration [HRSA]” for infants, children, and adolescents,12 and “such
additional preventive care and screenings” for women not already provided
for by the Task Force.13 Like ACIP, HRSA is part of the Public Health
Service and is “administered by the Assistant Secretary for Health under the
supervision and direction of the [HHS] Secretary,”14 but it does not consist
of “members,” so to speak. Rather, it consists of offices and bureaus that
report to the Office of the Administrator, who in turn reports to the HHS
Secretary.15
9
Id. § 300gg-13(a)(2).
10
Id. § 202.
11
See 80 Stat. 1610, Reorganization Plan No. 3 of 1966, § 1; see also42 U.S.C. §§ 243
, 247b.
12
42 U.S.C. § 300gg-13(a)(3).
13
Id. § 300gg-13(a)(4).
14
Id. § 202.
15
See id.
5
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Together, the Task Force, ACIP, and HRSA issue
recommendations and guidelines for preventive-care services that most
private insurers must cover by law.16 These recommendations span a number
of different healthcare services, ranging from cancer-detection procedures to
physical therapy for older adults. The many amici in this case attest to the
breadth and importance of these preventive-care services.
This is not to say, however, that all have gone without objection. As
relevant here, in 2007, ACIP recommended the HPV vaccine for females
ages eleven to twelve. Several years later, in 2011, HRSA issued guidelines
recommending “contraceptive methods, sterilization procedures, and
patient education and counseling for all women with reproductive
capacity.”17 And most recently, in 2019, the Task Force issued an “A”
recommendation for pre-exposure prophylaxis drugs (what the parties refer
to as “PrEP” drugs), which prevent the transmission of HIV.
B
The plaintiffs in this case, four individuals and two businesses, take
issue with the specific recommendations detailed above. The individual
plaintiffs are Texas residents who provide health insurance coverage for
themselves and their families, and the businesses are Christian-based for-
profit companies that provide health insurance for their employees.18
16
Id. § 300gg-13(a).
17
Some of these guidelines, codified in various parts of the Code of Federal
Regulations, became known as the “contraceptive mandate.” See Burwell v. Hobby Lobby
Stores, Inc., 573 U.S. 682, 692 (2014).
18
The district court found that four of the ten plaintiffs who objected to the
preventive-care mandates for purely economic reasons—namely, Donovan Riddle, Karla
Riddle, Joel Miller, and Gregory Scheideman—did not have standing. Although these
plaintiffs are listed as cross-appellants in this appeal, they present no argument on appeal
that the district court erred in its standing analysis. We will thus leave the district court’s
6
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Collectively, they object to the preventive-care mandates on religious
grounds and specifically allege that compulsory coverage of these services
requires them to violate their religious beliefs “by making them complicit in
facilitating homosexual behavior, drug use, and sexual activity outside of
marriage between one man and one woman.” For those reasons, the plaintiffs
all wish “to obtain or provide health insurance that excludes or limits
coverage currently required by the preventive-care mandates.”
To that end, they filed suit in the summer of 2020 and named as
defendants the federal government and the Secretaries of the Department of
Health and Human Services, the Department of the Treasury, and the
Department of Labor in their official capacities.19 Their operative complaint
contains five claims, only one of which is now relevant on appeal. They
contend that the structures of the Task Force, ACIP, and HRSA all violate
the Appointments Clause of the U.S. Constitution, insofar as the members
of each are acting as principal officers of the United States who have not been
nominated by the President and confirmed by the Senate.20 In their prayer
judgment in this respect undisturbed. See Ctr. for Biological Diversity v. EPA, 937 F.3d 533,
542 (5th Cir. 2019) (“Arguments in favor of standing, like all arguments in favor of
jurisdiction, can be forfeited or waived.”).
19
Some of the plaintiffs in this case had initially filed suit several years ago in what
they say was a “response” to the nationwide injunction issued in Pennsylvania v. Trump,
351 F. Supp. 3d 791(E.D. Penn. 2019). In that prior litigation, also in the Northern District of Texas, the plaintiffs obtained a permanent injunction prohibiting federal officials from enforcing the contraceptive mandate, thus essentially putting back in place the conscience- based exemptions issued during the Trump administration. See DeOtte v. Azar,393 F. Supp. 3d 490
, 514–15 (N.D. Tex. 2019). A panel of this court, however, later vacated that injunction as moot in light of Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania,591 U.S. 657
(2020). See DeOtte v. Nevada,20 F.4th 1055
, 1060 (5th Cir.
2021).
20
See U.S. Const. art. II, § 2, cl. 2.
7
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for relief, the plaintiffs sought an injunction prohibiting the Government
from enforcing the preventive-care mandates against them.
In its second of three summary-judgment rulings,21 the district court
rejected the plaintiffs’ Appointments Clause challenges against ACIP and
HRSA but granted the motion with respect to the Task Force. In light of the
latter ruling, the district court instructed the parties to file supplemental
briefing on, among other things, the scope of relief that should be given with
respect to the Task Force’s recommendations. The parties obliged, and in its
third and final summary-judgment order, the district court concluded that
the plaintiffs were entitled to a universal injunction and vacatur under § 706
of the Administrative Procedure Act (APA). The district court specifically
vacated all agency action taken to enforce the preventive-care mandates in
response to the Task Force’s recommendations and enjoined the
Government from enforcing the preventive-care mandates against anyone.22
21
In its first, the district court ruled that, (1) in light of DeOtte, the plaintiffs’
challenge to the contraceptive mandate was barred by res judicata, and (2) the plaintiffs’
suggested construction of § 300gg-13(a) under the canon of constitutional avoidance—that
it be read to encompass only those recommendations in effect at the time of the ACA’s
enactment—was unsupportable by the statute’s plain text.
22
In addition to the universal remedies, the district court also provided party-
specific relief, declaring that some of the plaintiffs “need not comply with the preventive
care coverage recommendations of [the Task Force] issued on or after March 23, 2010,
because the members of the Task Force have not been appointed in a manner consistent
with Article II’s Appointments Clause.” For good measure, the district court also enjoined
the Government defendants “from implementing or enforcing the [recommendations]
against” these plaintiffs.
8
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C
The parties timely cross-appealed. The plaintiffs maintain that the
structure of both ACIP and HRSA violate the Appointments Clause,23
while the Government continues to defend the constitutionality of the Task
Force and its recommendations.24 The Government, moreover, sought a
partial stay of the district court’s judgment pending appeal. A separate panel
of this court carried the motion and administratively stayed the district
court’s ruling to the extent it vacated and enjoined all agency actions taken
to enforce the Task Force’s recommendations.
After briefing and oral argument on the motion, the parties filed a joint
stipulation agreeing to a partial stay. The plaintiffs specifically acknowledged
that the district court’s injunction was incapable of immunizing them from
statutory penalties in the event the district court’s judgment was later
vacated or reversed,25 so they agreed to withdraw their opposition to the
23
The plaintiffs also continue to press on appeal their argument that 42 U.S.C.
§ 300gg-13(a)(1)–(4) lacks an intelligible principle and therefore violates the non-
delegation doctrine. They acknowledge, however, that their argument is foreclosed by our
decision in Big Time Vapes, Inc. v. FDA, 963 F.3d 436 (5th Cir. 2020).
24
Notably, the Government does not contest the district court’s determination
that at least six of the plaintiffs have Article III standing. Standing, of course, implicates
our subject-matter jurisdiction, so we cannot assume that the plaintiffs have it merely
because the Government does not argue otherwise. See Ruhrgas AG v. Marathon Oil Co.,
526 U.S. 574, 583(1999). Based on an independent review of the record and the plaintiffs’ allegations, we are satisfied that they have alleged an injury in fact that is traceable to the defendants’ conduct and redressable by a favorable judicial decision. See Allen v. Wright,468 U.S. 737, 751
(1984).
25
We take no position on whether the plaintiffs’ position on this point is in fact
correct. It appears to be an open question and one that we have no reason to answer today.
Compare Edgar v. MITE Corp., 457 U.S. 624, 648–49 (1982) (Stevens, J., concurring in part and concurring in the judgment) (“Neither the terms of the preliminary injunction nor prior equity practice provides any support for an interpretation of the District Court’s order as a grant of total immunity from future prosecution.”), withid. at 656
(Marshall,
9
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motion in exchange for the Government’s promise not to take any
enforcement action against them for their refusal to cover the mandated
preventive care between the date of the stipulation and the issuance of the
mandate in this appeal. Part of the district court’s judgment thus remains
stayed before this court, and we now review its legal rulings de novo.26
II
The primary point of contention between the parties, and the subject
of much of the district court’s thorough analysis, is the constitutionality of
the Task Force. The Government argued below that Task Force members
were merely “private citizens” and did not qualify as officers under
Article II. It has now abandoned that argument on appeal and concedes that
Task Force members are indeed officers who, by dint of their power to issue
legally binding recommendations on preventive care, exercise “significant
authority pursuant to the laws of the United States.”27 The parties now
dispute only whether Task Force members are “principal” or “inferior”
officers and, depending on which, whether Secretary Becerra has effectively
cured the constitutional problems that inhere in their recommendations.
J., dissenting) (concluding that a federal court has “the power to issue a preliminary
injunction that offers permanent protection from penalties for violations of the statute that
occurred during the period the injunction was in effect.”). This issue also seems to be
contested in the academic literature as well. Compare Douglas Laycock, Federal Interference
with State Prosecutions: The Need for Prospective Relief, 1977 Sup. Ct. Rev. 193, 209 (1977)
(“If the final judgment holds the statute valid, dissolves the interlocutory injunction, and
denies permanent relief, state officials would be free to prosecute any violation within the
limitations period.”), with Michael T. Morley, Erroneous Injunctions, 71 Emory L. J. 1137,
1183 (2022) (“To achieve its goal of preventing irreparable harm to a plaintiff’s rights, a
court must have authority to bar enforcement of a legal provision for actions the plaintiff
performs while an injunction is in effect, even if that injunction is later reversed or
vacated.”).
26
Nat’l Fed’n of the Blind of Tex., Inc. v. Abbott, 647 F.3d 202, 208 (5th Cir. 2011).
27
Buckley v. Valeo, 424 U.S. 1, 126 (1976).
10
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A
We begin with the major premise of the plaintiffs’ Appointments
Clause challenge: that the sixteen members of the Task Force are “principal
officers” of the United States who must be nominated by the President and
confirmed by the Senate.
Article II, section 2, clause 2 of the Constitution, more familiarly
known as the Appointments Clause, empowers the President to “nominate,
and by and with the Advice and Consent of the Senate, shall appoint . . .
Officers of the United States, whose Appointments are not herein otherwise
provided for, and which shall be established by Law.”28 The Appointments
Clause also empowers Congress to “vest the Appointment of such inferior
Officers, as they think proper, in the President alone, in the Courts of Law,
or in the Heads of Departments.”29 The Appointments Clause thus
establishes two tiers of officers—principal and inferior—and provides
different appointment processes for each. Principal officers must be
appointed by the President and confirmed by the Senate, whereas the
appointment of inferior officers may, by law, be vested in the President,
judiciary, or department heads.30
The process for appointing officers of the United States, as outlined
above, was by no means preordained. Perhaps owing to their experience
under the English Crown and its unilateral appointments of royal governors,
as well as the unsatisfactory solution provided by some early state
constitutions to vest the appointment power exclusively with the legislature,
28
U.S. Const. art. II, § 2, cl. 2.
29
Id.
30
Buckley, 424 U.S. at 132 (“Principal officers are selected by the President with
the advice and consent of the Senate. Inferior officers Congress may allow to be appointed
by the President alone, by the heads of departments, or by the Judiciary.”).
11
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the Framers fiercely debated the niceties of the appointments process.31
“The framers came to Philadelphia mindful of the colonial legacy of
monarchical appointment abuses,” one scholar recounts, “yet equally fearful
of legislative tyranny.”32 Understandably hesitant about concentrating the
appointment power in either the President or Congress, the Framers “did
what they did best—they compromised.”33 Hence the interbranch approach
we have today.
“[T]he debate on the Appointments Clause was,” to be sure, “brief,”
and the record we have on it from the convention is, alas, “sparse.”34 Sparser
still is the record on the Founding generation’s understanding of what,
exactly, distinguished principal officers from inferior ones.35 In their limited
debates on the Appointments Clause, the Framers were “primarily
concerned with whether Congress or the President would have the power to
appoint, rather than whom they would appoint.”36 Justice Story, in his
Commentaries on the Constitution, would later lament that the Framers
31
See Freytag v. Comm’r, 501 U.S. 868, 883 (1991) (“The manipulation of official
appointments had long been one of the American revolutionary generation’s greatest
grievances against executive power because the power of appointment to offices was
deemed the most insidious and powerful weapon of eighteenth-century despotism.”
(internal quotations and citations omitted)).
32
Theodore Y. Blumhoff, Separation of Powers and the Origins of the Appointment
Clause, 37 Syracuse L. Rev. 1037, 1069 (1987).
33
Id. at 1070.
34
Freytag, 501 U.S. at 883.
35
There has, however, been helpful and in-depth research on the original meaning
of the phrase “Officers of the United States.” See, e.g., Jennifer L. Mascott, Who Are
“Officers of the United States”?, 70 Stan. L. Rev. 443 (2018).
36
Edward Susolik, Note, Separation of Powers and Liberty: The Appointments Clause,
Morrison v. Olson, and the Rule of Law, 63 S. Cal. L. Rev. 1515, 1544 (1990) (emphasis
added).
12
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failed to distinguish between “who are and who are not to be deemed inferior
officers.”37
Unfortunately, the knowledge gap has not improved with time. In one
of its first modern38 Appointments Clause cases, Morrison v. Olson,39 the
Supreme Court echoed Justice Story’s lamentation. “The line between
‘inferior’ and ‘principal’ officers is one that is far from clear,” the Court
observed, “and the Framers provided little guidance into where it should be
drawn.”40 Unsurprisingly, then, in determining the status of the independent
counsel in that case, the Morrison Court declined “to decide exactly where
the line falls between the two types of officers.”41 Nevertheless, over a solo
yet enduring dissent from Justice Scalia, the Court attempted to provide
“[s]everal factors” guiding its decision, asking whether the officer (1) is
37
1 Joseph Story, Commentaries on the Constitution of the
United States 397 (3d ed. 1858).
38
Like the ratification history, early cases interpreting the Appointments Clause’s
distinction between principal and inferior officers are also of limited utility. “In fact,” one
court has commented, “the earliest Appointments Clause cases often employed circular
logic, granting officer status to an official based in part upon his appointment by the head
of a department.” Landry v. FDIC, 204 F.3d 1125, 1132–33 (D.C. Cir. 2000) (citing, e.g., United States v. Mouat,124 U.S. 303, 307
(1888)). The reasoning resonating from most Appointments Clause cases from the nineteenth and twentieth centuries can generally be characterized as a mixture of deference and pragmatism, looking to what Congress had done and the function of the office being evaluated. See, e.g., Ex parte Hennen,38 U.S. (13 Pet.) 230, 258
(1839); United States v. Germaine,99 U.S. 508, 510
(1878); United States v. Eaton,169 U.S. 331, 336
(1898); Go-Bart Importing Co. v. United States,282 U.S. 344, 352
(1931). Justice Scalia, for his part, called some these cases “sketchy precedent.” Morrison v. Olson,487 U.S. 654, 721
(1988) (Scalia, J., dissenting).
39
487 U.S. 654 (1988).
40
Id. at 671 (citing 2 Story, supra note 37, § 1536, at 397–98).
41
Id.
13
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removable by a higher official, (2) has only certain, limited duties, (3) has
limited jurisdiction, and (4) has limited tenure.42
The functional “balancing test”43 employed in Morrison, however,
would not survive long. Writing for a nearly unanimous Court in Edmond v.
United States44 a decade later, and borrowing from his dissent in Morrison,
Justice Scalia placed greater if not sole emphasis on subordination and
supervisory responsibility. “Generally speaking,” he wrote for the Court,
“the term ‘inferior officer’ connotes a relationship with some higher ranking
officer or officers below the President.”45 So “we think it evident,” he
continued, “that ‘inferior officers’ are officers whose work is directed and
supervised at some level by others who were appointed by Presidential
nomination with the advice and consent of the Senate.”46
The Court has twice since “reaffirm[ed] and appl[ied] the rule from
Edmond that the exercise of executive power by inferior officers must at some
level be subject to the direction and supervision of an officer nominated by
the President and confirmed by the Senate.”47 First, in Free Enterprise Fund
v. Public Company Accounting Oversight Board, the Court held that, without
statutory removal restrictions, members of the Accounting Oversight Board
were inferior officers because the Securities and Exchange Commission
could “remove Board members at will” and exercise “other oversight
authority” over the Board, like approve its issuance of rules and sanctions.48
42
Id. at 671–72.
43
Id. at 711 (Scalia, J., dissenting).
44
520 U.S. 651 (1997).
45
Id. at 662.
46
Id. at 663.
47
United States v. Arthrex, Inc., 594 U.S. 1, 27 (2021).
48
Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 510 (2010).
14
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Then, in United States v. Arthrex, the Court held that members of the Patent
Trial and Appeal Board were, effectively, principal officers because they had
the “power to render a final decision on behalf of the United States” on the
validity of existing patents without any “review by a superior executive
officer.”49
The general import of these Appointments Clause cases and others is
that inferiority entails being controlled and supervised by a superior. At a high
level, then, the inquiry can be a bit circular.50 Yet there are some discernable
hallmarks of inferiority from the precedent, perhaps the most important of
which is an officer’s removability.51 As the plaintiffs acknowledge in their
brief on cross-appeal, “at-will removal is the sine qua non of a dependent
relationship.” Indeed, removing an officer at will is, as the Court in Edmond
put it, “a powerful tool for control.”52
And on that score, we agree with the Government that the HHS
Secretary may remove members of the Task Force at will. At-will removal is
49
Arthrex, 594 U.S. at 14 (quoting Edmond, 520 U.S. 651 at 655). We use the word
“effectively” because we recognize that there was a disagreement between the majority
and one of the dissents as to whether the majority had in fact held that PTAB members
were principal officers. Compare id. at 23 (“The principal dissent repeatedly charges that
we never say whether APJs are principal officers who were not appointed in the manner
required by the Appointments Clause . . . .”), with id. at 46 (Thomas, J., dissenting)
(“Although [the majority] cannot quite bring itself to say so expressly, it too appears to
hold that administrative patent judges are principal officers under the current statutory
scheme.”).
50
Compare Principal Officer, Black’s Law Dictionary (11th ed. 2019) (“An
officer with the most authority of the officers being considered for some purpose.”), with
Inferior Officer, Black’s Law Dictionary (11th ed. 2019) (“An officer who is
subordinate to another officer.”).
51
See Seila L. LLC v. CFPB, 140 S. Ct. 2183, 2191–92 (2020) (“The President’s
power to remove—and thus supervise—those who wield executive power on his behalf
follows from the text of Article II . . . .”).
52
Edmond, 520 U.S. at 664.
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the background rule unless Congress clearly and expressly says otherwise,53
and neither we nor the plaintiffs can identify anything in the ACA or
elsewhere that displaces that background rule. Granted, the plaintiffs are
quick to point out that 42 U.S.C. § 299b-4(a)(6) requires Task Force
members to “be independent and, to the extent practicable, not subject to
political pressure.” And we agree that, on its face, this particular provision
provides a level of protection to the Task Force members and their work. But
we cannot go as far as to say that it is a clear and express restriction on their
removal. The provision does not resemble other provisions that more plainly
restrict removal,54 and if there were any doubt about the meaning of § 299b-
4(a)(6), we are not predisposed to resolve it in the plaintiffs’ favor. We
generally construe statutes in a way that avoids, rather than invites,
constitutional infirmity.55 So we agree with the Government that, whatever
53
See Collins v. Yellen, 141 S. Ct. 1761, 1782 (2021) (“When a statute does not limit the President’s power to remove an agency head, we generally presume that the officer serves at the President’s pleasure.”); see also Shurtleff v. United States,189 U.S. 311, 315
(1903) (requiring “very clear and explicit language” in the statute to establish removal limitations). The plaintiffs contend that these cases merely stand for the proposition that there must be “clear statutory language before courts will enforce limits on the President’s removal powers,” not other executive officers’, like the HHS Secretary. We see no reason, however, why the presumption would be limited to the President. If anything, such an artificial limitation would further disrupt the efficiency of the executive power that Article II contemplates, see Seila L.,140 S. Ct. at 2197
, and we are not in the business of thinking
up limitations ourselves.
54
E.g., 29 U.S.C. § 153(a) (“Any member of the [National Relations] Board may be removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.”);15 U.S.C. § 2053
(a) (“Any member of the Commission
may be removed by the President for neglect of duty or malfeasance in office but for no
other cause.”).
55
See United States ex rel. Att’y Gen. v. Del. & Hudson Co., 213 U.S. 366, 408 (1909)
(“[W]here a statute is susceptible to two constructions, by one of which grave and doubtful
constitutional questions arise and by the other of which such questions are avoided, our
duty is to adopt the latter.”).
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else § 299b-4(a)(6) means, it does not inhibit the HHS Secretary from
removing the Task Force members at his will.
We part ways with the Government, however, in its submission that
our analysis should stop there. More specifically, we disagree that “the
Secretary’s at-will removal authority is,” as the Government submits,
“sufficient to render the Task Force members constitutionally subordinate.”
The case the Government cites for that proposition, Free Enterprise Fund,
does not stand for it. To the contrary, it was the SEC’s removal power, along
with its oversight authority, that rendered members of the Accounting
Oversight Board inferior officers.56 The Supreme Court’s decisions in
Edmond and Arthrex likewise demonstrate that removability is not the sole
criterion by which to judge inferiority.57 Indeed, another important
consideration, if not equally so, is the extent to which the Task Force’s work
can be supervised by a higher-ranking executive official, like Secretary
Becerra.
On that front, we cannot say that any such supervision exists—as a
matter of law or reality. The statutory scheme, insofar as it concerns
recommendations from the Task Force, contemplates complete autonomy.
Indeed, we need look no further than the statutory provision we just
addressed, 42 U.S.C. § 299b-4(a)(6), which again provides that “[a]ll
56
See Free Enter. Fund, 561 U.S. at 510 (“Given that the Commission is properly
viewed, under the Constitution, as possessing the power to remove Board members at will,
and given the Commission’s oversight authority, we have no hesitation in concluding that
under Edmond the Board members are inferior officers whose appointment Congress may
permissibly vest in a ‘Hea[d] of Departmen[t].’” (alterations in original) (emphasis
added)).
57
See Edmond, 520 U.S. at 663 (“‘[I]nferior officers’ are officers whose work is
directed and supervised at some level by others . . . .”); Arthrex, 594 U.S. at 17–18 (“[I]t
certainly is the norm for principal officers to have the capacity to review decisions made by
inferior adjudicative officers.” (internal quotations omitted)).
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members of the Task Force . . . , and any recommendations made by such
members, shall be independent and, to the extent practicable, not subject to
political pressure.” While § 299b-4(a)(6) is not a clear and express removal
restriction, as we concluded above, it is a clear and express directive from
Congress that the Task Force be free from any supervision. In our view, the
Task Force cannot be “independent” and free from “political pressure” on
the one hand, and at the same time be supervised by the HHS Secretary, a
political appointee, on the other.
Invoking the constitutional-doubt canon again, the Government
resists this conclusion by emphasizing the qualifying language in § 299b-
4(a)(6). By its terms, the provision says that the Task Force shall be free from
political pressure only “to the extent practicable,” and this qualifier, according
to the Government, signals flexibility in our ability to construe the provision
in a way to make the broader scheme constitutional. The Government, in
other words, urges us to read “to the extent practicable” as “to the extent
constitutional.”
We decline to do so. The first flaw with the Government’s argument
is a textual one. Assuming “practicable” and “constitutional” are
synonymous (a doubtful semantic proposition to start), the phrase “to the
extent practicable” modifies only freedom from “political pressure,” not
“independent.”58 So even if we thought that § 299b-4(a)(6) provided some
interpretive flexibility with respect to the amount of political pressure that
the HHS Secretary could place on the Task Force, the terms of the provision
prevent us from using that same flexibility with respect to the Task Force’s
58
See 42 U.S.C. § 299b-4(a)(6) (“All members of the Task Force convened under
this subsection, and any recommendations made by such members, shall be independent
and, to the extent practicable, not subject to political pressure.”).
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statutorily required independence.59 More fundamentally, though, even if we
read § 299b-4(a)(6) to permit a level of review by the HHS Secretary
“necessary to ensure conformity with constitutional requirements,” as the
Government invites us to do, it is unclear how much review that should be.
If we were to read § 299b-4(a)(6) to allow the Secretary to review all the Task
Force’s recommendations, then the Task Force would have no political
independence at all, contrary to the terms of the provision. And if we were to
read § 299b-4(a)(6) to allow the Secretary to review only some of the
recommendations (how many, we do not know), then that would invite an
obvious line-drawing problem for which the provision provides no readily
discernable solution. For understandable reasons, the Government does not
offer any textually plausible way to draw the line,60 and we decline to contort
the provision in an effort to essentially guess what the constitutionally
optimal amount of “political pressure” ought to be.61
59
The Government makes the point that “independence” in this context does not
necessarily mean decisionmaking without supervision, but simply “unbiased” or
“dispassionate” decisionmaking. This is a creative but unpersuasive argument. The most
natural reading of “independent” in § 299b-4(a)(6), given its juxtaposition to the
additional requirement that the Task Force not be “subject to political pressure,” is one
that connotes freedom from outside control.
60
One could read the Government’s brief to suggest that we ought to draw the line
between recommendations that have “A” and “B” ratings and those that do not; or, more
finely, between those recommendations that have “A” and “B” ratings that specifically
qualify under § 300gg-13(a)(1) and those that do not. Whichever way the Government
might suggest such a line, we decline to draw it. Section 299b-4(a)(6) makes no distinction
between types of recommendations, as § 300gg-13(a)(1) does, and our modest interpretive
authority gives us no basis to begin picking and choosing how and when the HHS Secretary
must exercise a power of review that is not otherwise contemplated by the statutory text.
61
See Seila L., 140 S. Ct. at 2211 (“Constitutional avoidance is not a license to
rewrite Congress’s work to say whatever the Constitution needs it to say in a given
situation.”).
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We are also mindful that, however willing we may be to accept the
Government’s invitation to be “flexible,” we cannot read § 299b-4(a)(6) in
a way that is inconsistent with other parts of the statutory scheme. For
example, under § 300gg-13(a)(1), insurers “shall” provide coverage for
preventive-care services recommended by the Task Force, and under
§ 300gg-13(b)(1), the HHS Secretary “shall establish a minimum interval
between the date on which a recommendation . . . is issued and the plan year
with respect to which [the coverage requirement] is effective with respect to
the service described in such recommendation or guideline.” In other words,
the HHS Secretary has no power over the content of the Task Force’s
recommendations; his authority extends to only when those
62
recommendations become binding. In short, the statutory scheme outlining
the process by which the preventive-care recommendations are issued and
made effective envisions no supervisory role for the Secretary, and that is
especially clear in light of the express congressional preference that the Task
Force be independent and not subject to political pressure.
Our conclusions regarding the various statutory provisions governing
the respective roles of the Task Force and the HHS Secretary in issuing the
preventive-care mandates are, thus far, twofold: (1) Task Force members are
subject to at-will removal by the HHS Secretary; and (2) the Task Force’s
“recommendations” on legally mandated coverage of preventive care go
unreviewed—and are unreviewable—by a higher-ranking officer. The Task
Force members thus have attributes of both inferior and principal officers,
62
See 42 U.S.C. § 300gg-13(b). The Government seems to suggest that the
Secretary could fix the constitutional problem by refusing to give binding legal effect to the
Task Force’s recommendations under this provision. Assuming we were to embrace the
Secretary’s abdication of his statutory role as an ersatz solution to the broader structural
problem, it is unclear to us how this proposal would change anything about the
recommendations and guidelines that have already taken effect under § 300gg-13(b) and
currently give rise to the plaintiffs’ alleged injuries.
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and we now have the uneasy but necessary task of determining how to resolve
the competing considerations.
In our view, the Supreme Court’s decision in Arthrex, as informed by
Edmond, requires us to resolve those considerations in favor of holding that
the Task Force members are principal officers. As we have already briefly
recounted above, the question presented in Arthrex was whether members of
the Patent Trial and Appeal Board, or PTAB, were constitutionally
appointed officers in light of their power to give the “final word” on the
validity of challenged patents.63 The Court answered that question in the
negative, holding that the appointment of PTAB members as inferior
officers was inconsistent with the “nature of their responsibilities”—
specifically, their “power to render a final decision on behalf of the United
States” on patent claims “without any . . . review by their nominal superior
or any other principal officer in the Executive Branch.”64
The similarities between the PTAB in Arthrex and the Task Force in
this case are close, if not dispositive, of the issue before us. Like the PTAB,
the Task Force can, and does, issue legally binding decisions without any
review by a higher-ranking officer. Private insurers are legally required to
cover its preventive-care recommendations,65 and there is no way for the
HHS Secretary (or anyone else) to review, revise, or otherwise reject those
recommendations.66 It is no answer, as the Government argues, that the
HHS Secretary can exercise indirect control over the Task Force’s
recommendations through his removal power, because post hoc removal, as in
Arthrex, does not change the fact that there is still “no means of
63
Arthrex, 594 U.S. at 6.
64
Id. at 13–14.
65
42 U.S.C. § 300gg-13(a)(1).
66
See id. §§ 300gg-13(b), 299b-4(a)(6).
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countermanding the final decision [of the Task Force] already on the
books.”67 The scheme the Supreme Court rejected in Arthrex thus mimics
the scheme in this case in many material respects.
And yet we arguably have even more compelling reasons to be
skeptical of the scheme’s constitutionality here, because there was at least
the prospect of Article III review of the PTAB’s decisions in Arthrex 68
(which no one suggests we have of the Task Force’s recommendations), and
the unreviewable power the Task Force wields—promulgating preventive-
care coverage mandated for private insurers—is indisputably significant.69
Put simply, the Task Force exercises substantial power, and the absence of
any supervision over this power “goes a long way,” if not all the way,
“toward resolving this dispute” about whether to classify members of the
Task Force as principal officers.70
Accordingly, we hold that members of the Task Force are principal
officers under Article II of the Constitution who must be—yet have not
been—nominated by the President and confirmed by the Senate.71
B
Because we have concluded that members of the Task Force are
principal officers of the United States, we need not address the effect of
67
Arthrex, 594 U.S. at 16.
68
See id. at 17 (“Review outside Article II—here, an appeal to the Federal
Circuit—cannot provide the necessary supervision.”).
69
See id. (“Edmond calls [for] an appraisal of how much power an officer exercises
free from control by a superior” to distinguish between inferior and principal officers.). As
the Government has already conceded, the Task Force exercises “significant authority
pursuant to the laws of the United States.” Buckley, 424 U.S. at 126.
70
Id. at 14.
71
U.S. Const. art. II, § 2, cl. 2.
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Secretary Becerra’s affidavit, dated June 23, 2023, purporting to appoint the
members as inferior officers.72 Apart from that makeshift solution, however,
the Secretary has also attempted to cure the constitutional defects in the Task
Force’s recommendations through ratification. The Government points us
to a memo issued by Secretary Becerra dated January 21, 2022, purporting to
ratify all the recommendations issued thus far by the Task Force. According
to the Government, the Secretary’s memo cures whatever defects afflict the
Task Force’s recommendations because they now have the imprimatur of a
principal officer.
To our knowledge, neither we nor the Supreme Court73 has embraced
ratification as a remedy for an Appointments Clause issue. The remedial
theory seems to be well established, however, in a few of our sister circuits.
The D.C. Circuit, for example, has “repeatedly held that a properly
appointed official’s ratification of an allegedly improper official’s prior
action, rather than mooting [the] claim, resolves the claim on the merits by
‘remedy[ing] [the] defect’ (if any) from the initial appointment.”74 The
Government represents that other circuits, such as the Second, Third, and
Ninth, have followed suit.75 Based on our reading of these cases, they rest on
72
See U.S. Department of Health and Human Services,
Ratification of Prior Appointment and Prospective Appointment
Affidavit (2023), https://perma.cc/8TAA-7AMN.
73
As best we can tell, the Supreme Court has alluded to the notion of ratification
at least once in an Appointments Clause case. In Edmond, the Court mentioned in passing
that the Secretary of Transportation had, in anticipation of a potential Appointments
Clause problem, “issued a memorandum ‘adopting’” a lower-level officer’s assignments
to inferior officers. 520 U.S. at 654.
74
Guedes v. Bur. of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1, 13 (D.C. Cir.
2019) (second and third alteration in original) (citation omitted).
75
See NLRB v. Newark Elec. Corp., 14 F.4th 152, 160–63 (2d Cir. 2021); Kajmowicz v. Whitaker,42 F.4th 138
, 152 (3d Cir. 2022); CFPB v. Gordon,819 F.3d 1179
, 1191–92 (9th
Cir. 2016).
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basic principles of agency, to the extent that ratification can retroactively
effect actual authority for the improper official’s disputed action.76
Assuming we were to also adopt the proposition that ratification can
cure an improperly appointed official’s prior actions, however, we would still
be unconvinced that Secretary Becerra’s purported ratification of the Task
Force’s recommendations cures the constitutional problem in this case. That
is principally because, as we have already discussed, the Secretary does not
have the statutory authority to either review, revise, or issue the preventive-
care recommendations himself. That fact alone is fatal to the Government’s
ratification theory. “[I]t is essential,” the Supreme Court has held, “that the
party ratifying should be able not merely to do the act ratified at the time the
act was done, but also at the time the ratification was made.”77 In another one
of its Appointments Clause cases, the D.C. Circuit has similarly adhered to
the principle that “ratification can remedy a defect arising from the decision
of an improperly appointed official . . . when . . . a properly appointed official
has the power to conduct an independent evaluation of the merits and does
so.”78 So even if we were to go along with the Government’s ratification
theory, the argument would fail on its own terms, because no agency
relationship exists when the purported “principal” cannot do what his agent
does. Nor, in the same vein, is an agent’s relationship to his principal
76
See Restatement (Third) of Agency § 4.02; see also Williams v.
Thrasher, 62 F.2d 944, 946 (5th Cir. 1933).
77
FEC v. NRA Pol. Victory Fund, 513 U.S. 88, 98(1994) (quoting Cook v. Tullis,85 U.S. (18 Wall.) 332, 338
(1874) (emphasis omitted)).
78
Wilkes-Barre Hosp. Co., LLC v. NLRB, 857 F.3d 364, 371 (D.C. Cir. 2017)
(internal quotation marks and citations omitted).
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typically characterized by independence, as the Task Force’s is with the
HHS Secretary by statute.79
With respect to whether the HHS Secretary has principal-like
authority over the Task Force, the Government mostly reasserts the same
arguments it made on the principal-versus-inferior officer issue. For the same
reasons we have already rejected those arguments, we can also reject them
here. For the sake of completeness, though, we address one more, because it
too is equally applicable to the Government’s theory of ratification.
According to the Government, Secretary Becerra can supervise the Task
Force by virtue of statutory hierarchy. The Task Force, the Government
explains, is convened by a subagency within the Public Health Service, which
in turn “is administered by the Assistant Secretary for Health under the
supervision and direction of the [HHS] Secretary.”80 Based on this
structure, the Government contends, the Task Force is effectively “under
the supervision and direction of the Secretary.”
We are not persuaded. The inference the Government asks us to draw
is a plausible one, and statutory structure is indeed a key ingredient in the
interpretive enterprise.81 But relying on § 202 to show that the HHS
Secretary plays a particular role in the statutory scheme, as the Government
attempts to do, can in some sense beg the question. The Assistant Secretary
is charged under § 202 to “administer” the Public Health Service, and he
must do so as that body is currently constituted—with its various subagencies
and their own statutory schemes. The Assistant Secretary, in other words,
79
See 42 U.S.C. § 299b-4(a)(6) (“All members of the Task Force convened under
this subsection, and any recommendations made by such members, shall be independent
and, to the extent practicable, not subject to political pressure.”).
80
Id. § 202.
81
See, e.g., United States v. Granderson, 511 U.S. 39, 54 (1994) (using “text,
structure, and history” to determine statutory meaning).
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has no authority to reconfigure a legislative design by virtue of his duty to
“administer” the Public Health Service, and the HHS Secretary, by the
same token, has no more authority to do so just because he “supervis[es] and
direct[s]” the Assistant Secretary’s administration.82 At most, they could
“convene” and support the Task Force, as those tasks have been delegated
to the Director of the Agency for Healthcare Research and Quality,83 but they
cannot use the general pronouncement of § 202 to override the specific
statutory provisions providing the Task Force independence and autonomy
in the preventive-care process.84
Accordingly, we hold that Secretary Becerra’s attempt to cure the
constitutional defect in the Task Force’s recommendations through
ratification, as memorialized in his memo of January 21, 2022, is ineffective.
C
Recognizing the constitutional problems that inhere in the Task
Force’s statutorily required independence and distance from political
pressure, the Government asks that we “sever the limitations on secretarial
oversight in 42 U.S.C. § 299b-4(a)(6).” By this request, we understand the
Government to ask that we essentially interpret the statutory scheme in a way
that allows Secretary Becerra to disregard the limitations set forth in § 299b-
4(a)(6).85 Without those limitations, the Government argues, the
82
42 U.S.C. § 202.
83
Id. § 299b-4(a)(1), (3).
84
See id. §§ 299b-4(a)(6), 300gg-13(a)–(b); see also Preiser v. Rodriguez, 411 U.S.
475, 489–90 (1973).
85
See Arthrex, 594 U.S. at 23 (“In general, ‘when confronting a constitutional flaw
in a statute, we try to limit the solution to the problem’ by disregarding the ‘problematic
portions while leaving the remainder intact.’” (quoting Ayotte v. Planned Parenthood of N.
New Eng., 546 U.S. 320, 328–29 (2006))); see also Massachusetts v. Mellon,262 U.S. 447
,
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constitutional problem can be avoided: the Task Force need no longer be
“independent” and “subject to political pressure,”86 and Secretary Becerra
can begin “to review and reject Task Force ‘A’ and ‘B’ recommendations
before they would become effective under § 300gg-13.”
The Government is half-right. If we were to “sever” § 299b-4(a)(6),
we would indeed have no reason to ensure that the Task Force remained
“independent” and not “subject to political pressure,” as that provision
requires. We can agree with the Government on that much. It is far from
clear, however, how our decision to disregard § 299b-4(a)(6) would also
thereby empower the Secretary to begin reviewing, and possibly rejecting,87
the Task Force’s recommendations. Such secretarial review would not
conflict with any other applicable statutory provision, to be sure, but the
Government does not explain from where the Secretary’s power to review
the recommendations would derive once we decide to disregard the
command of § 299b-4(a)(6). As we have already observed, Congress
contemplated a limited, ministerial role for the Secretary with respect to the
preventive-care recommendations, as the mechanics of § 300gg-13(a)–(b)
bear out, and the HHS Reorganization Plan No. 3 of 1996 further makes clear
that any “functions vested by law in any advisory council, board, or
committee of the Public Health Service”—such as the Task Force—would
488 (1923) (describing a court’s “negative power to disregard an unconstitutional
enactment”). Compare Kevin C. Walsh, Partial Unconstitutionality, 85 N.Y.U. L. Rev.
738, 778 (2010) (“[J]udicial review is an exercise in determining the extent to which superior law displaces inferior law.”), with William Baude, Severability First Principles,109 Va. L. Rev. 1
, 5–6 (2023) (“The severability question tries to answer what the law is—
what is the law, in light of what the law is not?”).
86
42 U.S.C. § 299b-4(a)(6).
87
We note that it is only a possibility, and certainly not an inevitability, because of
the Secretary’s unexplained memo ratifying all the Task Force’s recommendations en
masse.
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not be transferred to the HHS Secretary.88 It is thus apparent that the
Secretary could not exercise the supervisory power that the Government
hypothesizes he would exercise in the absence of § 299b-4(a)(6).
For many of these reasons, we are unable to track the Supreme
Court’s severability analysis in Arthrex, as the Government urges us to do.
The Court in Arthrex, of course, concluded that the offending provision—
§ 6(c) of the America Invents Act—“cannot constitutionally be enforced to
the extent that its requirements prevent the Director from reviewing final
decisions rendered by the APJs.”89 By declining to enforce that provision,
the Court allowed the Director to exercise the “powers and duties” vested
in him by Congress and to accordingly “review[] PTAB decisions” and even
“issue decisions himself on behalf of the Board.”90 In this case, by contrast,
Congress bestowed no such power upon the HHS Secretary. There are no
fallback provisions on which he can rely to exercise a supervisory power (or
any other), and no injunction, declaration, or judgment of ours can change
that statutory reality.91
“[W]e try,” when we can, “to limit the solution to the problem.”92
But with or without § 299b-4(a)(6), the constitutional problem persists. We
88
80 Stat. 1610, § 1(b).
89
Arthrex, 549 U.S. at 25.
90
Id. at 24, 25; see also 35 U.S.C. § 3(a)(1) (“The powers and duties of the United States Patent and Trademark Office shall be vested in . . . [a] Director of the United States Patent and Trademark Office . . . , who shall be a citizen of the United States and who shall be appointed by the President, by and with the advice and consent of the Senate.”);id.
§ 3(2)(A) (“The Director shall be responsible for providing policy direction and
management supervision for the Office and for the issuance of patents and the registration
of trademarks.”).
91
Cf. NetChoice, L.L.C. v. Paxton, 49 F.4th 439, 448 (5th Cir. 2022) (“[T]he
judicial power vested in us by Article III does not include the power to veto statutes.”).
92
Ayotte, 546 U.S. at 328.
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therefore decline the Government’s invitation “to sever the limitations on
secretarial oversight” over the Task Force.93
III
Because we agree with the plaintiffs on the merits of their
Appointment Clause challenge against the Task Force, we must now
determine whether they were given the appropriate relief.
The district court determined that the plaintiffs were entitled to not
only party-specific injunctive relief but also vacatur under § 706(2) of the
APA and a concomitant universal injunction. The district court specifically
vacated “any and all agency actions taken to implement or enforce the
preventive care coverage requirements in response to an ‘A’ or ‘B’
recommendation by the [Task Force] on or after March 23, 2010,” and
enjoined the Government “from implementing or enforcing 42 U.S.C.
§ 300gg-13(a)(1)’s compulsory coverage requirements in response to an ‘A’
or ‘B’ rating from [the Task Force] in the future.”
The Government, along with the many amici in this case, vigorously
object to these remedies. The Government, for its part, contends that the
district court failed to consider the equities when it granted this broad
relief—and if it had, the Government posits, the district court would have
concluded that vacatur was unwarranted. The amici, for their part, echo the
Government and vouch for the equities at stake. They generally attest to the
importance of the various preventive-care services that are now covered by
93
By extension, we also decline the Government’s alternative invitation to sever
§ 299b-4(a)(6)’s application “to the Task Force’s ‘A’ and ‘B’ recommendations to the
extent those recommendations are given effect to require coverage under 42 U.S.C.
§ 300gg-13.” If the Government’s broader proposed solution cannot fix the constitutional
problem, neither can its narrower one.
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operation of § 300gg-13(a), and many of them express concern about the
collateral effects the universal remedies would have if implemented.
Although we disagree with the Government’s primary contention that
the district court was required to consider the various equities at stake, we
nevertheless agree with its secondary contention that there was no basis for
the district court to grant relief under the APA. It follows, in our view, that
there was also no basis for the universal injunction.
A
Our caselaw, notwithstanding notable skepticism,94 has understood
vacatur under § 706(2) to be a remedy that affects individuals beyond those
who are parties to the immediate dispute. “Under prevailing precedent,” we
have observed, Ҥ 706 extends beyond the mere non-enforcement remedies
available to courts that review the constitutionality of legislation, as it
empowers courts to set aside—i.e., formally nullify and revoke—an unlawful
agency action.”95 As we put it in a couple of recent cases, setting aside agency
action under § 706 has “nationwide effect,”96 is “not party-restricted,”97
and “affects persons in all judicial districts equally.”98 That is because, unlike
94
E.g., United States v. Texas, 599 U.S. 670, 695(2023) (Gorsuch, J., concurring) (doubting that the “power to ‘vacate’ agency action” means to render it “null and void”); John Harrison, Vacatur of Rules Under the Administrative Procedure Act,40 Yale J. on Reg. 119
, 131 (2023) (“Vacatur of rules, under section 706(2) or as a
generally applicable non-statutory remedy, was not familiar when the APA was
adopted.”).
95
Data Mktg. P’ship, LP v. U.S. Dep’t of Lab., 45 F.4th 846, 859 (5th Cir. 2022)
(internal quotations marks omitted).
96
In re Clarke, 94 F.4th 502, 512 (5th Cir. 2024).
97
Career Colls. and Schs. of Tex. v. U.S. Dep’t of Educ., 98 F.4th 220, 255 (5th Cir.
2024).
98
Clarke, 94 F.4th at 512.
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an injunction, which operates in personam,99 vacatur operates on the status of
agency action in the abstract.100
In addition to its potency and peculiarly broad nature, vacatur under
§ 706 is, as we have repeatedly described it, the “default” remedy for
unlawful agency action.101 Thus, contrary to what the Government and the
amici represent, we do not read our precedent to require consideration of the
various equities at stake before determining whether a party is entitled to
vacatur.102 Section 706, after all, provides that a “reviewing court shall” set
99
See Joseph Story, Commentaries on Equity Pleadings § 72, at
74 (2d ed. 1840).
100
See Whole Woman’s Health v. Jackson, 595 U.S. 30, 44 (2021) (“Consistent with historical practice, a federal court exercising its equitable authority may enjoin named defendants from taking specified unlawful actions.”); see also Texas v. Biden,20 F.4th 928
,
957 (2021) (rev’d on other grounds) (“That statutory empowerment [in § 706(2)] means
that, unlike a court’s decision to hold a statute unconstitutional, the district court’s vacatur
rendered the June 1 Termination Decision void.”); Harrison, supra note 94, at 119 (2023)
(“Vacatur of rules, as [some] courts understood it, is a universal remedy distinct from
universal injunctions. Vacatur operates on the legal status of a rule, causing the rule to lose
binding force.”).
101
E.g., Data Mktg., 45 F.4th at 859 (“The default rule is that vacatur is the
appropriate remedy); Texas v. Biden, 20 F.4th at 993 (“[B]y default, remand with vacatur
is the appropriate remedy.”); Franciscan All., Inc. v. Becerra, 47 F.4th 368, 374–75 (5th Cir.
2022) (“Vacatur is the only statutorily prescribed remedy for a successful APA challenge
to a regulation.”).
102
The one decision the Government cites in support of its contention, Cargill v.
Garland, 57 F.4th 447(5th Cir. 2023), is not to the contrary. In Cargill, we confronted what we concluded to be an unlawful agency regulation, and a plurality of our en banc court opted to remand the vacatur issue to the district court so that it could consider whether “a more limited remedy [was] appropriate [under the] circumstances.”Id. at 472
. The plurality did so, it stated, because “the parties ha[d] not briefed the remedial-scope question.”Id.
That is obviously not the case here. What the Government’s short parenthetical citation to Cargill fails to capture is that just before the plurality decided that remand was appropriate given the lack of briefing, it recited plainly the proposition that is at odds with its argument: “vacatur of an agency action is the default rule in this Circuit.”Id.
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aside unlawful agency action,103 and we do not understand vacatur to be a
remedy familiar to courts sitting in equity, at least as this court currently
conceptualizes it.104
We do read our precedent, however, to say that one of the minimal
requirements to be entitled to this “default” APA remedy is, perhaps
unsurprisingly, an APA claim. As the Government dutifully apprised us via
a Rule 28(j) letter, a panel of this court recently said as much. In Deanda v.
Becerra, a plaintiff belatedly requested vacatur of an allegedly unlawful
regulation in a proposed final judgment following his successful
constitutional challenge to the administration of a federal statute.105 Over an
objection by the Government that the plaintiff had failed to plead an APA
claim, the district court adopted the proposed judgment and vacated the
regulation.106 We reversed, observing, “We know of no authority . . .
authorizing a court to vacate a regulation under § 706(2) in the absence of an
APA claim.”107
We can say the same today. The plaintiffs’ response to the
Government’s Rule 28(j) letter does not raise to our attention any newer,
103
5 U.S.C. § 706(2) (emphasis added).
104
See Feds for Med. Freedom v. Biden, 63 F.4th 366, 387 (5th Cir. 2023) (“[T]he
English system of equity did not authorize injunctions against the king. And as a general
rule, American courts of equity did not provide relief to parties beyond the case.” (internal
quotations and citations omitted)). But cf. 2 The Records of the Federal
Convention of 1787, at 27 (Max Farrand ed., 1911) (Madison describing the
judiciary’s powers to “set aside” unconstitutional laws).
105
96 F.4th 750, 755 (5th Cir. 2024).
106
Id.
107
Id. at 767–68.
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contrary authority. Nevertheless, they offer two counterpoints. Abiding by
our rule of orderliness,108 we must reject them both.
The plaintiffs first contend that Rule 54(c) of the Federal Rules of
Civil Procedure does not confine the available remedies to what they
requested in their complaint. Under Rule 54(c), “final judgment[s] should
grant relief to which each party is entitled, even if the party has not demanded
that relief in its pleadings.”109 We agree that Rule 54(c) does indeed dispel
the formalism that relief is limited to only what is specifically demanded, and
we further agree that, unlike the defendant in Deanda, the Government in
this case had comparatively more time to rebut the plaintiffs’ claim of
entitlement to vacatur. Even so, the plaintiffs’ vacatur demand undeniably
came “at a . . . later stage of the proceedings,”110 and it was of “substantially
different character from that requested” in their operative complaint.111
Specifically, the demand came during the third round of summary-judgment
briefing, just before the notice of appeal was filed, and the remedy had the
effect of invalidating many agency actions, none of which the plaintiffs
challenged in their live complaint. In fact, the one APA claim the plaintiffs
asserted in their original complaint—which took aim at the many preventive-
care recommendations that they now assert are unlawful—was abandoned in
their amended complaint. We continue to adhere to the view that Rule 54(c)
108
See Gahagan v. U.S. Citizenship & Immigr. Servs., 911 F.3d 298, 302(5th Cir. 2018) (“Three-judge panels . . . abide by a prior Fifth Circuit decision until the decision is overruled, expressly or implicitly, by either the United States Supreme Court or by the Fifth Circuit sitting en banc.” (quoting Cent. Pines Land Co. v. United States,274 F.3d 881, 893
(5th Cir. 2001))).
109
Fed. R. Civ. P. 54(c).
110
Engel v. Teleprompter Corp., 732 F.2d 1238, 1242 (5th Cir. 1984).
111
Portillo v. Cunningham, 872 F.3d 728, 735 (5th Cir. 2017).
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offers “remedial latitude,”112 insofar as judgments need not be limited to the
kind or amount of relief pleaded,113 but we think it a step too far for the district
court to award relief never pleaded (indeed, abandoned), and to do so at the
last stage of proceedings and for particular agency actions never expressly
challenged.
Apart from their procedural-flexibility argument, the plaintiffs also
contend that even if they did not expressly challenge the agency actions
encompassed by the district court’s vacatur order, their constitutional
challenge implicitly did. In the plaintiffs’ view, vacatur under the APA is
appropriate here because their successful constitutional challenge to the
preventive-care coverage mandates under 42 U.S.C. § 300gg-13 necessarily
implicates the lawfulness of the regulations and agency actions taken under
them. This argument, we think, has sound logic,114 but it is one that is also
foreclosed by Deanda. As the panel in that case recognized, the “substantive
rulings were incompatible with the regulation’s lawfulness,” but it was still
“not the same as adjudicating an APA challenge to a regulation.”115 We
must, therefore, also reject this theory of upholding the district court’s
vacatur remedy.
B
Because we do not find any support for the district court’s decision to
vacate all agency actions taken to enforce the Task Force’s
recommendations, we also cannot find any support for the district court’s
112
Deanda, 96 F.4th at 768.
113
Charles Allen Wright & Mary Kay Kane, Law of Federal
Courts 631 (8th ed. 2017).
114
Cf. Franciscan All., 47 F.4th at 378 (“[A] challenge to an agency regulation is
necessarily a challenge to the underlying statute as well.”).
115
Deanda, 96 F.4th at 768.
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universal (or nationwide) injunction. The parties recognize that such
injunctions are not “required or even the norm,”116 and several justices on
the Supreme Court have viewed them with conspicuous skepticism.117
Scholars and judges from our sister circuits have done the same.118
Likely for those reasons, the plaintiffs do not defend the universal
injunction on its own terms. They instead justify it on the ground that it is no
broader, and thus no more harmful, than the vacatur remedy that the district
court already awarded. “Because this injunction is concomitant to the APA
remedy,” the plaintiffs explain, “there is no cause for angst over the issuance
of a universal injunction.” We can agree with the sentiment119 but not with
116
Louisiana v. Becerra, 20 F.4th 260, 263 (5th Cir. 2021).
117
Compare Labrador v. Poe, 144 S. Ct. 921, 928 (2024) (Gorsuch, J., concurring) (“Lower courts would be wise to take heed” that “any equitable remedy they issue must not be ‘more burdensome to the defendant than necessary to redress’ the plaintiff’s injuries.”) (quoting Califano v. Yamasaki,442 U.S. 682, 702
(1979)), with id. at 938 (Jackson, J., dissenting) (“I share the concern that courts heed the limits of their power.”); see also Trump v. Hawaii,585 U.S. 667
, 713 (2018) (Thomas, J., concurring) (“I am skeptical that district courts have the authority to enter universal injunctions.”); Griffin v. HM Fla.-ORL, LLC,144 S. Ct. 1
, 1 (Mem.) (statement of Kavanaugh, J.)
(“No federal statute expressly grants district courts the power to enter injunctions
prohibiting Government enforcement against non-parties in the circumstances presented
in this case.”).
118
E.g., Arizona v. Biden, 40 F.4th 375, 394–98 (Sutton, C.J., concurring). The scholarship on nationwide injunctions is prolific, and we are generally familiar—and appreciative—of all the academics who have weighed in on this important issue. But for analysis from one leading commentator, see generally Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction,131 Harv. L. Rev. 417
, 421 (2017).
119
Cf. Labrador, 144 S. Ct. at 931–32 (Kavanaugh, J., concurring) (“[A] rule
prohibiting nationwide or statewide injunctions would not eliminate the need for this Court
to assess the merits of some emergency applications involving new laws. For one, there is
an ongoing debate about whether any such rule would apply to Administrative Procedure
Act cases involving new regulations, given the text of the APA.”); Earth Island Inst. v.
Ruthenbeck, 490 F.3d 687, 699 (9th Cir. 2006) (upholding a nationwide injunction and
concluding that it was “compelled by the text of [§ 706] of the Administrative Procedure
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the premise. As we have already explained, the district court erred in vacating
all agency actions120 taken to enforce the preventive-care mandates, so we
have no reason to uphold relief broader than what is necessary to redress the
plaintiffs’ injuries.121 Though this case concerns federal law and necessarily
implicates concerns of nationwide uniformity, it does not fall into one of the
narrow categories that we have previously identified as particularly
appropriate for universal injunctive relief.122 Nor would party-specific
Act”); Ronald M. Levin, Vacatur, Nationwide Injunctions, and the Evolving APA, 98
Notre Dame L. Rev. 1997, 2027 (2023) (“The [Solicitor General’s] solution of
allowing a court to provide injunctive relief only to the individual litigant would seem to
mean that a regulation could never be vacated or ‘set aside’ as a whole, no matter how many
courts have spoken to its validity, until the Supreme Court has reviewed it.”).
120
We additionally note, and the plaintiffs agree, that the district court’s vacatur
remedy was overbroad insofar as it purported to vacate non-final agency actions. See 5
U.S.C. § 704 (“Agency action made reviewable by statute and final agency action for which
there is no other adequate remedy in court are subject to judicial review.”).
121
See Califano, 442 U.S. at 702 (“[I]njunctive relief should be no more
burdensome to the defendant than necessary to provide complete relief to the plaintiffs.”).
122
E.g., Texas v. United States, 809 F.3d 134, 187–88 (5th Cir. 2015) (upholding a universal injunction in an immigration case because of the interest in keeping immigration laws “uniform” and because “a geographically-limited injunction would be ineffective”); Texas v. United States,50 F.4th 498
, 531 (5th Cir. 2022) (“In the context of immigration law, broad relief is appropriate to ensure uniformity and consistency in enforcement.”) (quoting Texas v. United States,40 F.4th 205
, 229 n.18 (5th Cir. 2022)); see also Feds for Med. Freedom, 63 F.4th at 388 (explaining that the Government’s opposition toward the district court’s universal injunction “s[at] awkwardly” with its position that it wanted “consistency across the Government in enforcement of this Government-wide vaccine policy”). It is worth noting that the fact we are reviewing the constitutionality of federal law can also cut against universal relief, because unlike a universal injunction against the enforcement of state law, one against the enforcement of federal law presents more practical percolation problems. See Trump, 585 U.S. at 713 (Thomas, J., concurring) (“These [universal] injunctions are beginning to take a toll on the federal court system— preventing legal questions from percolating through the federal courts . . . .”). There is also, not to mention, the issue of nonmutual offensive collateral estoppel and the Supreme Court’s holding in United States v. Mendoza that it does not apply to the federal government.464 U.S. 154, 164
(1984).
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injunctive relief in this case prove “unwieldy” or “cause more confusion”
for geographic reasons, for all the plaintiffs in this case reside in two
neighboring Texas counties.123
Thus, without any basis to seek universal vacatur of final agency
actions taken to enforce the preventive-care mandates, the plaintiffs lack any
basis for an injunction of the same breadth.124 The district court likewise did
not explain why, apart from vacatur under the APA, the universal injunction
was necessary. We must therefore conclude that it was an abuse of discretion
to enter universal injunctive relief after already providing complete relief to
the plaintiffs.
IV
We now address, lastly, the subject of the plaintiffs’ cross-appeal. For
reasons that echo their constitutional challenge against the Task Force, the
plaintiffs maintain that the other two administrative bodies behind the
preventive-care mandates, ACIP and HRSA, violate the Appointments
Clause.
As far as the statutory scheme in § 300gg-13 is concerned, both ACIP
and HRSA have roles similar to that of the Task Force. For example, like the
123
Feds for Med. Freedom, 63 F.4th at 388 (upholding a universal injunction because,
among other reasons, the thousands of plaintiffs were “spread across every State in the
Nation” and the district court “fear[ed] that limiting the relief to only those before it would
prove unwieldy and would only cause more confusion”).
124
We recognize, of course, that even ordinary, party-specific injunctions can
incidentally benefit nonparties. See, e.g., Texas, 599 U.S. at 693 (Gorsuch, J.,
concurring) (“Traditionally, when a federal court finds a remedy merited, it provides
party-specific relief, directing the defendant to take or not take some action relative to the
plaintiff. If the court’s remedial order affects nonparties, it does so only incidentally.”); see
also Feds for Med. Freedom, 63 F.4th at 387 (noting that injunctions “could benefit non-
parties as long as that benefit was merely incidental” (internal quotation omitted)). But we
think it indicative of its overbreadth that the district court’s universal injunction in this case
would ultimately benefit some of the parties in this lawsuit whom it found lacked standing.
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Task Force, both ACIP and HRSA appear to have the unilateral authority
to issue legally binding recommendations for preventive care under § 300gg-
13(a), and their power to do so is subject only to the HHS Secretary’s
“interval” determination under subsection (b).125
The similarities, however, disappear once our review extends past
that cabined preventive-care scheme. With respect to ACIP, its preventive-
care recommendations must first be approved by the CDC Director before
they can take effect.126 The CDC Director, in turn, derives his authority from
the HHS Secretary, who can countermand the CDC Director’s decisions to
approve ACIP’s vaccine recommendations.127 Similarly, with respect to
HRSA, Secretary Becerra can exercise control over the guidelines it
publishes by virtue of the transfer of power in HHS’s Reorganization Plan
No. 3 of 1966. There, Congress authorized the Secretary to perform “all
functions of the Public Health Service . . . and all functions of all agencies of
or in the Public Health Service.”128 Thus, unlike his power vis-à-vis the Task
Force, Secretary Becerra has fallback powers on which he can exercise
125
See 42 U.S.C. § 300gg-13(b) (“The [HHS] Secretary shall establish a minimum
interval between the date on which a recommendation described in subsection (a)(1) and
(a)(2) or a guideline under subsection (a)(3) is issued and the plan year with respect to
which the requirement described in subsection (a) is effective with respect to the service
described in such recommendation or guideline.”).
126
See 45 C.F.R. § 147.130(a)(1)(ii) (“[A] recommendation from [ACIP] is
considered in effect after it has been adopted by the Director of the [CDC].”).
127
See 42 U.S.C. § 243; see alsoid.
§ 242c.
128
80 Stat. 1610(1966). The plaintiffs contend that HRSA did not exist until 1982, so the Reorganization Plan No. 3 of 1966 could not have transferred its powers and functions to the HHS Secretary. The plaintiffs recognize, however, that this argument is all but foreclosed by Willy v. Administrative Review Board,423 F.3d 483
, 491–92 (5th Cir.
2005), in which we held that the Reorganization Plan No. 6 of 1950, which predated the
creation of the Administrative Review Board within the Department of Labor, transferred
to the Secretary of Labor the power to appoint members of the Administrative Review
Board.
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supervisory authority over ACIP and HRSA—authority, in our view, that
encompasses the prerogative to ratify their preventive-care
recommendations and guidelines made pursuant to § 300gg-13(a).129
According to the Government, the Secretary has exercised this
statutory prerogative and has effectively cured whatever Appointments
Clause issues afflict ACIP and HRSA. Like it did with the Task Force, the
Government points to Secretary Becerra’s memo of January 21, 2022, in
which he purported to ratify all the recommendations and guidelines thus far
issued by ACIP and HRSA.
Even if we were prepared to accept ratification as a valid means of
curing Appointments Clause defects, however, we cannot accept the
Secretary’s attempt to do so here—at least at this juncture. That is because
the plaintiffs put forward compelling and essentially unrebutted arguments
that there are serious APA problems with the Secretary’s ratification memo.
They specifically contend that the Secretary’s memo (1) failed to go through
notice-and-comment rulemaking,130 (2) is arbitrary and capricious because it
does not explain its reasoning,131 and (3) is improperly retroactive.132 The
district court, to be sure, determined that the Secretary had properly ratified
ACIP’s and HRSA’s recommendations and guidelines, but it had no
129
See Free Enter. Fund, 561 U.S. at 510 (“Given that the Commission is properly
viewed, under the Constitution, as possessing the power to remove Board members at will,
and given the Commission’s oversight authority, we have no hesitation in concluding that
under Edmond the Board members are inferior officers whose appointment Congress may
permissibly vest in a ‘Hea[d] of Departmen[t].’” (emphasis added) (alterations in
original)).
130
See 5 U.S.C. § 553(b)–(c) (outlining notice-and-comment procedure).
131
See id. § 706(2)(A) (empowering reviewing courts to “hold unlawful and set
aside agency action, findings, and conclusions found to be—arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law”).
132
See id. § 551(4).
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opportunity to consider the above three contentions that the plaintiffs now
advance on appeal—likely because the Secretary issued his ratification memo
on January 21, 2022, years after the plaintiffs filed their amended complaint
and months after they filed their initial brief in support of summary judgment.
In our estimation, these arguments present pure questions of law and,
if left unconsidered, could lead to an incorrect result with respect to the
plaintiffs’ constitutional challenges. For those reasons, we could exercise our
discretion to consider them for the first time on appeal.133 At the same time,
however, we are disinclined to decide questions without sufficient briefing,
particularly ones of high stakes and of constitutional import. We also
generally prefer to adhere to our policy of being “a court of review, not first
view.”134 So rather than decide these heady questions ourselves without the
benefit of any considered judgment below or any meaningful response from
the Government on appeal, we think it prudent for the district court to
consider these arguments in the first instance. Once it does, we will be better
positioned to weigh in on issues that affect not only the parties to this case,
but evidently so many of the interested stakeholders in this circuit that the
many amici represent.135
133
See Murray v. Anthony J. Bertucci Constr. Co., 958 F.2d 127, 128(1992) (“This court has recognized, however, that ‘when a question is of pure law, and when refusal to consider it will lead to an incorrect result or a miscarriage of justice, appellate courts are inclined to consider questions first raised on appeal.’” (quoting Nilsen v. City of Moss Point, Mississippi,674 F.2d 379
, 387 n.13 (5th Cir. 1982), rev’d en banc on other grounds,701 F.2d 556
(5th Cir. 1983))).
134
Deanda, 96 F.4th at 767 (quoting Rest L. Ctr. v. U.S. Dep’t of Lab., 66 F.4th 593,
597 (5th Cir. 2023)).
135
Cf. Maslenjak v. United States, 582 U.S. 335, 354 (2017) (Gorsuch, J.,
concurring in part and concurring in the judgment) (“[T]he crucible of adversarial testing
on which we usually depend, along with the experience of our thoughtful colleagues on the
district and circuit benches, could yield insights (or reveal pitfalls) we cannot muster guided
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V
In sum, we:
AFFIRM the district court’s judgment insofar as it
enjoined the defendants from enforcing the preventive-care
mandates against the plaintiffs it found had standing;
REVERSE its judgment insofar as it entered universal
remedial relief; and
REMAND for further proceedings to consider those
arguments we have identified as presented for the first time
on appeal.
only by our own lights.”). Granted, the many amici in this case may have less interest in
this litigation now that we have determined the district court erred in granting universal
relief. But barring a contrary decision from our en banc court or the Supreme Court, our
decision today will of course have stare decisis effect for the litigants in this circuit. See
Labrador, 144 S. Ct. at 932 (Kavanaugh, J., concurring).
41
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