Petition for Writ of Certiorari — Robert F. Kennedy, Jr., Secretary of Health and Human Services, et al., Petitioners v. Braidwood Management, Inc., et al.
Supreme Court briefSep 19, 2024
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No. XX-XX
In the Supreme Court of the United States
XAVIER BECERRA, SECRETARY OF HEALTH AND
HUMAN SERVICES, ET AL., PETITIONERS
v.
BRAIDWOOD MANAGEMENT, INC., ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
SAMUEL R. BAGENSTOS
General Counsel
JOEL MCELVAIN
Acting Deputy General
Counsel
JANICE L. HOFFMAN
Associate General Counsel
SUSAN MAXSON LYONS
Deputy Associate General
Counsel for Litigation
JOCELYN S. BEER
LINDSAY S. GOLDBERG
KENNETH R. WHITLEY
Attorneys
Department of Health and
Human Services
Washington, D.C. 20201
ELIZABETH B. PRELOGAR
Solicitor General
Counsel of Record
BRIAN M. BOYNTON
Principal Deputy Assistant
Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
EPHRAIM A. MCDOWELL
Assistant to the Solicitor
General
MICHAEL S. RAAB
DANIEL AGUILAR
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
The U.S. Preventive Services Task Force (Task
Force), which sits within the Public Health Service of
the Department of Health and Human Services (HHS),
issues clinical recommendations for preventive medical
services, such as screenings and medications to prevent
serious diseases. Under the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119,
health insurance issuers and group health plans must
cover certain preventive services recommended by the
Task Force without imposing any cost-sharing requirements on patients. 42 U.S.C. 300gg-13(a)(1). The question presented is as follows:
Whether the court of appeals erred in holding that
the structure of the Task Force violates the Appointments Clause, U.S. Const. Art. II, § 2, Cl. 2, and in declining to sever the statutory provision that it found to
unduly insulate the Task Force from the HHS Secretary’s supervision.
(I)
PARTIES TO THE PROCEEDING
Petitioners (defendants-appellants/cross-appellees
below) are Xavier Becerra, in his official capacity as
Secretary of Health and Human Services; Janet Yellen,
in her official capacity as Secretary of the Treasury; Julie A. Su, in her official capacity as Acting Secretary of
Labor; and the United States of America.
Respondents (plaintiffs-appellees/cross-appellants
below) are Braidwood Management, Inc., John Scott
Kelley, Kelley Orthodontics, Ashley Maxwell, Zach
Maxwell, and Joel Starnes. Additional respondents
(plaintiffs-cross-appellants below) are Joel Miller and
Gregory Scheideman.
RELATED PROCEEDINGS
United States District Court (N.D. Tex.):
Braidwood Mgmt., Inc. v. Becerra, No. 20-cv-283
(Mar. 30, 2023)
United States Court of Appeals (5th Cir.):
Braidwood Mgmt., Inc. v. Becerra, No. 23-10326
(June 21, 2024)
(II)
TABLE OF CONTENTS
Page
Opinions below .............................................................................. 1
Jurisdiction .................................................................................... 2
Constitutional and statutory provisions involved ...................... 2
Statement ...................................................................................... 2
A. Legal background ............................................................. 3
B. The present controversy................................................... 6
Reasons for granting the petition ............................................. 12
A. The decision below is incorrect ...................................... 13
1. Task Force members properly serve as inferior
officers who are subordinate to the Secretary ...... 14
2. Even if Task Force members were principal
officers, Section 299b-4(a)(6) can be severed to
cure the constitutional defect .................................. 22
B. The decision below warrants review ............................. 27
Conclusion ................................................................................... 34
Appendix A — Court of appeals opinion
(June 21, 2024).............................................. 1a
Appendix B — District court second memorandum
opinion & order on remedies in relation
to plaintiffs’ motion for summary
judgment (Mar. 30, 2023) .......................... 49a
Appendix C — District court memorandum opinion
and order (Sept. 7, 2022) ........................... 85a
Appendix D — Constitutional and statutory provisions .. 137a
TABLE OF AUTHORITIES
Cases:
Barr v. American Ass’n of Political Consultants,
Inc., 591 U.S. 610 (2020) ..................................................... 28
Bowsher v. Synar, 478 U.S. 714 (1986)................................ 14
Buckley v. Valeo, 424 U.S. 1 (1976)...................................... 21
Butz v. Economou, 438 U.S. 478 (1978) .............................. 20
(III)
IV
Cases—Continued:
Page
Collins v. Yellen, 594 U.S. 220 (2021) .................................. 17
Edmond v. United States,
520 U.S. 651 (1997)............................................ 14, 15, 18, 21
Free Enter. Fund v. Public Co. Accounting
Oversight Bd.:
537 F.3d 667 (D.C. Cir. 2008), aff ’d in part, rev’d
in part, and remanded, 561 U.S. 477 (2010) ...... 15, 16
561 U.S. 477 (2010) ...................................15, 17, 18, 23, 24
Freytag v. Commissioner, 501 U.S. 868 (1991) .................. 20
Haaland v. Brackeen, 599 U.S. 255 (2023) ......................... 27
Iancu v. Brunetti, 588 U.S. 388 (2019) ................................ 27
Intercollegiate Broad. Sys., Inc. v. Copyright
Royalty Bd., 684 F.3d 1332 (D.C. Cir. 2012),
cert. denied, 569 U.S. 1004 (2013) ............................... 15, 28
Kalaris v. Donovan, 697 F.2d 376 (D.C. Cir.),
cert. denied, 462 U.S. 1119 (1983) ..................................... 20
Maricopa Cnty. v. Lopez-Valenzuela,
574 U.S. 1006 (2014)............................................................ 27
Metro-North Commuter Co. v. Buckley,
521 U.S. 424 (1997)................................................................ 4
Morrison v. Olson, 487 U.S. 654 (1988) ......................... 15, 16
Myers v. United States, 272 U.S. 52 (1926) ........................ 17
National Fed’n of Indep. Bus. v. Department
of Labor, 595 U.S. 109 (2022) ............................................. 33
Pittson Coal Grp. v. Sebben, 488 U.S. 105 (1988) ............... 16
Rostker v. Goldberg, 453 U.S. 57 (1981) .............................. 27
SEC v. Jarkesy, 144 S. Ct. 2117 (2024) ................................ 27
Silver v. United States Postal Serv., 951 F.2d 1033
(9th Cir. 1991)...................................................................... 17
United States v. Arthrex, Inc.,
594 U.S. 1 (2021) ...................................... 8, 16, 17, 21-25, 28
V
Cases—Continued:
Page
United States v. Sineneng-Smith,
590 U.S. 371 (2020).............................................................. 28
United States v. Vaello Madero,
596 U.S. 159 (2022).............................................................. 28
United States ex rel. Accardi v. Shaughnessy,
347 U.S. 260 (1954).............................................................. 20
Ysleta del Sur Pueblo v. Texas,
596 U.S. 685 (2022).............................................................. 20
Constitution, statutes, and regulation:
U.S. Const.:
Art. II, § 2, Cl. 2 (Appointments Clause) .............. 2, 7-10,
12-14, 17, 28, 31, 137a
Art. III .............................................................................. 30
Act of Oct. 19, 1984, Pub. L. No. 98-532, 98 Stat. 2705 ........ 4
Administrative Procedure Act, 5 U.S.C 706(2) ................ 7, 9
Federal Advisory Committee Act,
Pub. L. No. 92-463, 86 Stat. 770 ........................................ 26
§ 2(a), 86 Stat. 770 ........................................................... 26
§ 2(b)(6), 86 Stat. 770....................................................... 26
5 U.S.C. 1002(a) (Supp. IV 2022) ................................... 26
5 U.S.C. 1002(b)(6) (Supp. IV 2022)............................... 26
Healthcare Research and Quality Act of 1999,
Pub. L. No. 106-129, sec. 2(a)(1), § 915(a)(1),
113 Stat. 1659 ........................................................................ 4
Patient Protection and Affordable Care Act,
Pub. L. No. 111-148, 124 Stat. 119 ...................................... 2
Tit. IV, 124 Stat. 538 ....................................................... 29
5 U.S.C. 7513(a) ..................................................................... 22
12 U.S.C. 263 .......................................................................... 17
33 U.S.C. 921(b) ..................................................................... 16
33 U.S.C. 921(c)...................................................................... 16
VI
Statutes and regulation—Continued:
Page
39 U.S.C. 203 .......................................................................... 17
42 U.S.C. 202 ................................................................ 5, 18, 25
42 U.S.C. 299(a) ................................................................. 5, 17
42 U.S.C. 299b-4(a) (2018 & Supp. IV 2022) ......................... 4
42 U.S.C. 299b-4(a)(1) ........................................3, 17, 30, 138a
42 U.S.C. 299b-4(a)(5) (Supp. IV 2022)................................ 26
42 U.S.C. 299b-4(a)(6) ............. 4, 8, 10, 11, 19-21, 24, 25, 140a
42 U.S.C. 300gg-13 .................................................. 5, 29, 142a
42 U.S.C. 300gg-13(a)(1) .......................... 2, 5, 21, 26, 30, 142a
42 U.S.C. 300gg-13(a)(2)-(4) ......................................... 7, 142a
42 U.S.C. 300gg-13(b) .................................................... 5, 143a
42 U.S.C. 300gg-13(b)(1) ....................................... 18, 22, 143a
Proclamation No. 7711, National Breast Cancer
Awareness Month, 2003, 3 C.F.R. 115
(2003 Comp.).......................................................................... 4
Reorganization Plan No. 3 of 1966, 80 Stat. 1610 ........... 4, 25
§ 1, 80 Stat. 1610 .............................................................. 25
§ 1(a), 80 Stat. 1610 ......................................... 4, 17, 18, 25
§ 1(b), 80 Stat. 1610 ................................................... 11, 26
§ 2, 80 Stat. 1610 .................................................... 5, 17, 18
Miscellaneous:
Appointment and Removal of Federal Reserve Bank
Members of the Federal Open Market Committee,
2019 WL 11594453 (Op. O.L.C. Oct. 23, 2019) ................. 17
155 Cong. Rec. 33,071 (2009) ................................................ 29
78 Fed. Reg. 39,870 (July 2, 2013) .................................... 3, 30
VII
Miscellaneous—Continued:
Page
Public Health Serv., U.S. Dep’t of Health, Educ., and
Welfare, Smoking and Health: Report of the Advisory Committee to the Surgeon General of the Public Health Service (1964), https://perma.cc/8YPTM9MB .................................................................................. 26
The Constitutional Separation of Powers Between
the President and Congress, 20 Op. O.L.C. 124
(1996) .................................................................................... 17
U.S. Dep’t of Health & Human Servs.:
Centers for Medicare & Medicaid Servs.,
Background: The Affordable Care Act’s New
Rules on Preventive Care (July 14, 2010),
https://perma.cc/U8K5-MN95 .................................. 28
Issue Brief — Access to Preventive Services
without Cost-Sharing: Evidence from the
Affordable Care Act (Jan. 11, 2022),
https://perma.cc/BGV4-N8U2 .......................... 3, 6, 29
Centers for Disease Control & Prevention,
Health and Economic Benefits of Diabetes
Interventions (May 15, 2024),
https://perma.cc/YW5F-KLX4 ................................. 32
Secretary of the HHS, Ratification of Prior
Appointment and Prospective Appointment:
Appointment Affidavits (June 28, 2023),
https://perma.cc/8TAA-7AMN ................................... 9
U.S. Preventive Servs. Task Force,
A & B Recommendations,
https://perma.cc/FC9Y-Y3DN ....................... 6, 31, 32
In the Supreme Court of the United States
No. XX-XX
XAVIER BECERRA, SECRETARY OF HEALTH AND
HUMAN SERVICES, ET AL., PETITIONERS
v.
BRAIDWOOD MANAGEMENT, INC., ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
The Solicitor General, on behalf of Xavier Becerra,
Secretary of Health and Human Services (HHS); Janet
Yellen, Secretary of the Treasury; Julie A. Su, Acting
Secretary of Labor; and the United States of America,
respectfully petitions for a writ of certiorari to review
the judgment of the United States Court of Appeals for
the Fifth Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App., infra, 1a48a) is reported at 104 F.4th 930. The memorandum
opinions and orders of the district court (App., infra,
49a-84a, 85a-136a) are reported at 666 F. Supp. 3d 613
and 627 F. Supp. 3d 624.
(1)
2
JURISDICTION
The judgment of the court of appeals was entered on
June 21, 2024. The jurisdiction of this Court is invoked
under 28 U.S.C. 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
Pertinent constitutional and statutory provisions are
reproduced in the appendix to this petition. App., infra,
137a-143a.
STATEMENT
Congress has long instructed the U.S. Preventive
Services Task Force (Task Force) to recommend preventive medical services, such as screenings and medications to avoid serious health conditions. The Task
Force sits within the Public Health Service, over which
the Secretary of HHS (Secretary) exercises supervisory authority. In the Patient Protection and Affordable Care Act (ACA or Act), Pub. L. No. 111-148, 124
Stat. 119, Congress required that health insurance issuers and group health plans cover certain preventive services recommended by the Task Force without imposing any cost-sharing requirements on patients. 42
U.S.C. 300gg-13(a)(1). The court of appeals held that
the Task Force’s structure violates the Appointments
Clause of the Constitution, Art. II, § 2, Cl. 2, even
though the court agreed that the Secretary may remove
Task Force members at will. And the court then declined to sever the statutory provision that it found to
unduly insulate the Task Force from oversight by the
Secretary. The court’s holding jeopardizes healthcare
protections that have been in place for 14 years and that
millions of Americans currently enjoy.
3
A. Legal Background
1. Preventive services include screenings and medications to avoid serious health conditions. Such “services can help people avoid acute illness, identify and
treat chronic conditions, prevent cancer or lead to earlier detection, and improve health.” HHS, Issue Brief—
Access to Preventive Services without Cost-Sharing:
Evidence from the Affordable Care Act 1 (Jan. 11, 2022),
https://perma.cc/BGV4-N8U2 (Access to Preventive
Services). Overall, “[u]se of preventive services results
in a healthier population and reduces health care costs
by helping individuals avoid preventable conditions and
receive treatment earlier.” 78 Fed. Reg. 39,870, 39,872
(July 2, 2013).
In 1984, the Public Health Service within HHS convened the first panel of the Task Force, composed of
“nationally recognized non-Federal experts in prevention and evidence-based medicine.” D. Ct. Doc. 65, at
70 (Jan. 28, 2022). For four decades, the Task Force has
“worked to fulfill its mission of improving the health of
all Americans” by evaluating the evidence for various
treatments and services to promote public health. Ibid.
The Task Force “review[s] the scientific evidence related to the effectiveness, appropriateness, and costeffectiveness of clinical preventive services for the purpose of developing recommendations for the health care
community, and updating previous clinical preventive
recommendations.” 42 U.S.C. 299b-4(a)(1). It publishes its recommendations “in the Guide to Clinical
Preventive Services,” a resource for medical professionals, Congress, and other policy makers. Ibid. Task
Force recommendations have been cited by this Court
as a medical authority concerning “which tests are most
4
usefully administered and when,” Metro-North Commuter R.R. v. Buckley, 521 U.S. 424, 441 (1997), and by
President Bush in “encourag[ing] all women to consult
with their physicians to obtain appropriate [breast cancer] screenings,” Proclamation No. 7711, National
Breast Cancer Awareness Month, 2003, 3 C.F.R. 115
(2003 Comp.).
Congress codified the Task Force’s role in 1999 by
authorizing the Director of the Agency for Healthcare
Research and Quality (AHRQ), an agency within the
Public Health Service, to “periodically convene” the
Task Force. Healthcare Research and Quality Act of
1999, Pub. L. No. 106-129, sec. 2(a), § 915(a)(1), 113 Stat.
1659; see 42 U.S.C. 299b-4(a)(1). The Task Force is currently composed of 16 members who are appointed for
four-year terms, D. Ct. Doc. 65, at 71, although there
are no statutory restrictions on a member’s removal
before the expiration of his or her term, see 42
U.S.C. 299b-4(a) (2018 & Supp. IV 2022). Congress
specified 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.” 42 U.S.C. 299b-4(a)(6).
At the same time, Congress has given the Secretary
significant supervisory authority over the Public Health
Service, which includes AHRQ and the Task Force. In
Reorganization Plan No. 3 of 1966 (Reorganization
Plan), 80 Stat. 1610, the Secretary was transferred “all
functions of the Public Health Service” and its “officers,” “employees,” and “agencies,” § 1(a), 80 Stat. 1610;
see Pub. L. No. 98-532, 98 Stat. 2705. The Secretary
was further empowered to “make such provisions as he
shall deem appropriate authorizing the performance of
5
any of the functions transferred to him by the provisions of this reorganization plan by any officer, employee, or agency” of the Public Health Service or HHS.
§ 2, 80 Stat. 1610. And the Secretary is also authorized
to “supervis[e] and direct[]” the Public Health Service,
42 U.S.C. 202, and to “carry out” AHRQ’s mission and
duties by “acting through [its] Director,” 42 U.S.C. 299(a).
2. The ACA seeks to ensure that all Americans have
access to quality, affordable health insurance coverage.
One of the Act’s reforms requires health insurance issuers and group health plans to cover certain preventive services without imposing copayments, deductibles,
or other cost-sharing charges. 42 U.S.C. 300gg-13.
Congress did not create a fixed list of covered preventive services, but rather provided for coverage of categories of services based on the current recommendations of medical experts, including the Task Force. The
Act accordingly requires coverage for “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.” 42 U.S.C. 300gg13(a)(1).1 The Act further specifies that “[t]he Secretary shall establish a minimum interval between the
date on which a recommendation * * * is issued” and
the date on which issuers and plans must cover the recommended service without cost sharing for a new plan
year. 42 U.S.C. 300gg-13(b).
Since the ACA’s enactment, millions of Americans
The Task Force issues “A” recommendations for services that
have a high certainty of a substantial net benefit; “B” recommendations for services that have at least a moderate certainty of a moderate net benefit; and “C” recommendations for services that have
at least a moderate certainty of a small net benefit. D. Ct. Doc. 65,
at 117.
1
6
have enjoyed coverage without cost sharing for critical
preventive services that are proven to save lives. See
Access to Preventive Services 1; D. Ct. Doc. 121-1, at 2
(Apr. 12, 2023). The Task Force’s current recommendations give “A” or “B” ratings to more than 50 preventive services. U.S. Preventive Servs. Task Force, A & B
Recommendations, https://perma.cc/FC9Y-Y3DN (A
& B Recommendations). Among many other things,
those services include screenings to detect lung, cervical, and colorectal cancer; screenings to detect diabetes;
statin medications to reduce the risk of heart disease
and strokes; medications to prevent HIV; physical therapy for older adults to prevent falls; and eye ointment
for newborns to prevent blindness-causing infections.
Ibid.
B. The Present Controversy
1. Respondents are four individuals and two small
businesses who object to Congress’s directive that
health insurance issuers and group health plans generally must cover preventive services without cost sharing. App., infra, 7a. Five of the six respondents “do not
currently participate in the health care market.” Id. at
62a; see D. Ct. Doc. 111-1, ¶ 5 (Jan. 6, 2023); D. Ct. Doc.
111-2, ¶¶ 5-6 (Jan. 6, 2023); D. Ct. Doc. 111-3, ¶ 5 (Jan.
6, 2023). Those respondents nonetheless object to the
ACA’s requirement that issuers and plans cover preexposure prophylaxis (PrEP) medications, which the Task
Force has assigned an “A” rating based on their effectiveness at preventing HIV infection in certain at-risk
individuals. See D. Ct. Doc. 14, at 8, 10-11 (July 20,
2020). Those respondents state that PrEP medications
“encourage and facilitate homosexual behavior,” which
conflicts with their religious beliefs. Id. at 8.
7
Braidwood Management is the only respondent that
currently participates in the health insurance market.
App., infra, 55a. Braidwood offers coverage to its approximately 70 employees through a self-insured plan.
Ibid. Its owner wishes to exclude from that plan “coverage of preventive care such as * * * PrEP drugs”
because he “objects to coverage of those services on religious grounds.” Ibid. Braidwood does not allege, however, that any of its employees have ever sought coverage for PrEP medications.
2. Respondents filed this suit in the United States
District Court for the Northern District of Texas. As
relevant here, respondents contend that the Task
Force’s structure violates the Appointments Clause,
U.S. Const. Art. II, § 2, Cl. 2, because, in their view,
Task Force members are principal officers of the
United States who have not been appointed by the President with the advice and consent of the Senate. App.,
infra, 8a. Respondents’ operative complaint seeks injunctive and declaratory relief but does not seek vacatur under Section 706(2) of the Administrative Procedure Act (APA), 5 U.S.C. 706(2). D. Ct. Doc. 14, at 1318. After this suit was filed, the Secretary ratified all
Task Force “A” and “B” recommendations then currently in effect. D. Ct. Doc. 65, at 6.2
Respondents also asserted various other claims, including Appointments Clause challenges to two other bodies within HHS—the
Advisory Committee on Immunization Practices (ACIP) and the
Health Resources and Services Administration (HRSA)—that issue
recommendations and guidelines that insurance issuers and group
health plans are required to cover without cost sharing. See App.,
infra, 5a-6a, 8a; 42 U.S.C. 300gg-13(a)(2)-(4). The district court rejected those Appointments Clause challenges, App., infra, 102a106a, but the court of appeals reversed and remanded for consideration of respondents’ argument that the Secretary’s ratification of
2
8
The district court granted summary judgment to respondents. App., infra, 85a-136a. The court held that
Task Force members are principal officers who must be
appointed by the President with the advice and consent
of the Senate. Id. at 115a. The court acknowledged that
“no statute forbids” the “Secretary[] or AHRQ Director
from firing any member of” the Task Force. Id. at 119a.
But the court nonetheless concluded that Task Force
members “have no superior,” because the Secretary
“neither directs nor supervises [the Task Force] or its
members.” Id. at 115a-116a.3
The district court declined to construe or sever the
relevant statutory provision to avoid the Appointments
Clause problem it identified. App., infra, 80a-82a. Specifically, the court rejected the government’s argument
that the provision rendering Task Force members and
their recommendations “independent and, to the extent
practicable, not subject to political pressure,” 42 U.S.C.
299b-4(a)(6), could plausibly be read to allow the Secretary to review the Task Force’s “A” and “B” recommendations before they bind insurance issuers and group
health plans. App., infra, 81a. The court observed that
even if the statute could be read to “permit the Secretary to authorize or reject [Task Force] recommendations post hoc,” it “would not compel him to take such
action.” Ibid. The court recognized that this Court in
United States v. Arthrex, Inc., 594 U.S. 1 (2021), had
ACIP and HRSA recommendations and guidelines required notice
and comment under the APA, id. at 43a-47a. Those separate claims
are not at issue in this petition.
3
In the district court, the government primarily contended that
Task Force members are not officers of the United States subject
to the Appointments Clause. See D. Ct. Doc. 64, at 50-56 (Jan. 28,
2022); App., infra, 107a-114a.
9
“cur[ed]” an Appointments Clause violation by severing
a statutory provision to ensure that administrative patent judges’ decisions would “be subject to the review of
the PTO Director.” App., infra, 81a. But the district
court deemed Arthrex “inapplicable” based on its view
that the Task Force is not “subject to the Secretary’s
‘supervision and direction.’ ” Ibid. (citation omitted).
As a remedy for the identified Appointments Clause
violation, the district court not only granted partyspecific relief, but also ordered “[u]niversal” relief
based on its reading of Section 706(2) of the APA, even
though respondents had not raised an APA claim in
their operative complaint. App., infra, 72a (emphasis
omitted). The court vacated “[a]ll agency action 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.” Id. at 83a. And the court also granted a nationwide injunction barring the government from “implementing or enforcing” the ACA’s preventiveservices “coverage requirements in response to an ‘A’
or ‘B’ rating from the Task Force in the future.” Ibid.
3. The government sought a stay pending appeal of
the district court’s universal remedies. After the court
of appeals heard oral argument on the government’s
stay motion, the parties stipulated to a stay of the universal remedies, and the court of appeals entered a corresponding stay. C.A. Doc. 153-2 (June 13, 2023). While
the appeal was pending, the Secretary ratified the
AHRQ Director’s appointment of the current members
of the Task Force and appointed those members himself
on a prospective basis. See Secretary of HHS, Ratification of Prior Appointment and Prospective Appointment:
10
Appointment Affidavits (June 28, 2023), https://perma.
cc/8TAA-7AMN.
4. The court of appeals affirmed the district court’s
holding that the Task Force’s structure violates the Appointments Clause but reversed the district court’s
grant of universal relief. App., infra, 1a-48a.
a. The court of appeals held that Task Force members are principal officers who had not been properly
appointed. App., infra, 26a. The court acknowledged
that “an officer’s removability” is “perhaps the most important” “hallmark[] of inferiority.” Id. at 17a. And it
“agree[d] with the Government that the HHS Secretary
may remove members of the Task Force at will.” Id. at
18a. But the court believed that “another important
consideration * * * is the extent to which the Task
Force’s work can be supervised by a higher-ranking executive official, like Secretary Becerra.” Id. at 20a.
“On that front,” the court of appeals reasoned that it
could not “say that any such supervision exists—as a
matter of law or reality.” App., infra, 20a. Citing Section 299b-4(a)(6), the court took the view that “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.” Ibid. The court construed “independent”
to mean “free[] from outside control,” as opposed to
simply “unbiased.” Id. at 21a n.59. And the court declined to read Section 299b-4(a)(6)’s phrase, “to the extent practicable,” to give the Secretary a level of control
necessary to avoid any constitutional problem. 42
U.S.C. 299b-4(a)(6); see App., infra, 21a-23a.
The court of appeals then “resolve[d] the competing
considerations” bearing on the status of Task Force
members—at-will removability coupled with allegedly
11
unreviewable authority—“in favor of holding that the
Task Force members are principal officers.” App., infra, 24a. The court believed that this Court’s decision
in Arthrex was largely “dispositive,” because “[l]ike the
[Patent Trial and Appeal Board at issue in Arthrex], the
Task Force can, and does, issue legally binding decisions without any review by a higher-ranking officer.”
Ibid. “It is no answer,” the court concluded, “that the
HHS Secretary can exercise indirect control over the
Task Force’s recommendations through his removal
power.” Id. at 25a.
The court of appeals also declined to sever Section
299b-4(a)(6) and allow the Secretary to review Task
Force “A” and “B” recommendations on that basis.
App., infra, 30a-33a. The court acknowledged that “[i]f
[it] were to ‘sever’ § 299b-4(a)(6),” the Secretary’s review of Task Force recommendations “would not conflict with any other applicable statutory provision.” Id.
at 31a. But the court found it “far from clear” how a
“decision to disregard § 299b-4(a)(6) would also thereby
empower the Secretary to begin reviewing, and possibly
rejecting, the Task Force’s recommendations.” Ibid.
(footnote omitted). The court further opined that the
Secretary’s authority over the Public Health Service
does not extend to the Task Force because, in the
court’s view, the Task Force is “an[] advisory council,
board, or committee” exempt from secretarial control.
Id. at 31a-32a (quoting § 1(b), 80 Stat. 1610). For those
reasons, the court was “unable to track the Supreme
Court’s severability analysis in Arthrex,” and concluded
that “with or without § 299b-4(a)(6), the constitutional
problem persists.” Id. at 32a-33a.
12
b. The court of appeals next held that there “was no
basis” for the district court’s grant of “universal remedies.” App., infra, 34a. The court observed that, “notwithstanding notable skepticism” about the availability
of universal vacatur under the APA, the Fifth Circuit
“has understood vacatur under § 706(2) to be a remedy
that affects individuals beyond those who are parties to
the immediate dispute.” Id. at 34a-35a. And the court
stated that under Fifth Circuit precedent, universal vacatur is “the ‘default’ remedy for unlawful agency action.” Id. at 36a (citation omitted). Accordingly, the
court found that the district court did not err by refusing to consider “the various equities at stake before determining” that vacatur was warranted. Ibid.
The court of appeals observed, however, that under
Fifth Circuit precedent, “one of the minimal requirements to be entitled to th[e] ‘default’ APA remedy is,
perhaps unsurprisingly, an APA claim.” App., infra,
37a. Because respondents had failed to plead an APA
claim in their operative complaint, the court rejected
the “district court’s decision to vacate all agency actions
taken to enforce the Task Force’s recommendations.”
Id. at 39a. And “without any basis to seek universal vacatur,” the court held that respondents correspondingly
“lack any basis for an injunction of the same breadth.”
Id. at 42a-43a. The court of appeals therefore limited
the district court’s injunction so that it bars the government only from enforcing the preventive-services coverage requirements against respondents. Id. at 43a.
REASONS FOR GRANTING THE PETITION
The court of appeals relied on an erroneous understanding of the Appointments Clause to hold the Task
Force’s structure unconstitutional. The Secretary has
the power to remove Task Force members at will and to
13
supervise the Public Health Service, of which the Task
Force is a part. Under this Court’s precedent, Task
Force members are subordinate to the Secretary and
serve as inferior officers. Indeed, the court of appeals
identified no case in which an official who is removable
at will by a principal officer is herself a principal officer.
At minimum, the court of appeals should have severed
the lone provision that it (incorrectly) perceived as unduly insulating the Task Force from secretarial control.
This Court’s review is warranted because the court
of appeals has held an Act of Congress unconstitutional
and its legal rationale would inflict immense practical
harms. Millions of Americans rely on insurance coverage for preventive services without cost sharing. If allowed to stand, the decision below would call into question the legal duty of insurance issuers and group health
plans to cover Task Force “A” and “B” recommendations without cost sharing. Moreover, the decision could
prompt district courts within the Fifth Circuit to universally vacate past agency actions implementing “A”
and “B” recommendations and universally enjoin implementation of those recommendations moving forward.
The petition should be granted.
A. The Decision Below Is Incorrect
This Court’s precedents chart a clear path for resolving the Appointments Clause challenge here: Task
Force members properly serve as inferior officers who
are subordinate to the Secretary; and at minimum, the
lone provision that respondents cite as unduly insulating Task Force members from secretarial control can
be construed or severed to cure any constitutional defect. The court of appeals’ contrary ruling lacks merit.
14
1. Task Force members properly serve as inferior officers who are subordinate to the Secretary
The court of appeals held that Task Force members
are principal officers who must be appointed by the
President with the advice and consent of the Senate because the Secretary lacks adequate supervisory authority over them. App., infra, 26a. That holding is incorrect.
a. The Appointments Clause distinguishes between
“inferior Officers”—whose appointment Congress may
vest “in the President alone, in the Courts of Law, or in
the Heads of Departments,” U.S. Const. Art. II, § 2, Cl.
2—and “principal (noninferior) officers,” who must be
appointed by the President with the advice and consent
of the Senate. Edmond v. United States, 520 U.S. 651,
659 (1997); see id. at 659-660. “Generally speaking, the
term ‘inferior officer’ connotes a relationship with some
higher ranking officer or officers below the President,”
because “[w]hether one is an ‘inferior’ officer depends
on whether he has a superior.” Id. at 662. Thus, 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.” Id. at 663.
In determining whether adequate direction and supervision exists, the Court has emphasized that “[t]he
power to remove officers * * * is a powerful tool for
control.” Edmond, 520 U.S. at 664. After all, “[o]nce an
officer is appointed it is only the authority that can remove him, and not the authority that appointed him,
that he must fear and, in the performance of his functions, obey.” Bowsher v. Synar, 478 U.S. 714, 726 (1986)
(citation omitted). As the D.C. Circuit has put the point,
“[w]ith unfettered removal power, [a principal officer]
15
will have the direct ability to ‘direct,’ ‘supervise,’ and
exert some ‘control’ over [another officer’s] decisions.”
Intercollegiate Broad. Sys., Inc. v. Copyright Royalty
Bd., 684 F.3d 1332, 1341 (2012) (citation omitted), cert.
denied, 569 U.S. 1004 (2013).
This Court’s cases have thus recognized that the unrestricted removability of an officer by someone other
than the President is strong and likely dispositive evidence of inferior-officer status. In Edmond, the Court
held that judges of the Coast Guard Court of Criminal
Appeals were inferior officers in part because they
could be removed by the Judge Advocate General “from
[a] judicial assignment without cause.” 520 U.S. at 664;
see Free Enter. Fund v. Public Co. Accounting Oversight Bd., 537 F.3d 667, 707 (D.C. Cir. 2008) (Kavanaugh, J., dissenting) (noting that “Edmond was a
relatively easy case” because “[t]he officers were removable at will”), aff’d in part, rev’d in part, and remanded 561 U.S. 477 (2010). And in Free Enterprise
Fund v. Public Co. Accounting Oversight Board, 561
U.S. 477 (2010), the Court “ha[d] no hesitation in concluding” that members of the Public Company Accounting Oversight Board were inferior officers once “the
statutory restrictions on the [Securities and Exchange]
Commission’s power to remove Board members” had
been severed. Id. at 510. That was true, the Court held,
even though “the Board is empowered to take significant enforcement actions, and does so largely independently of the Commission.” Id. at 504.
Similarly, in his dissent in Morrison v. Olson, 487
U.S. 654 (1988), Justice Scalia explained that if the independent counsel there had been “removable at will by
the Attorney General, then she would [have been] sub-
16
ordinate to him and thus properly designated as inferior.” Id. at 716. But because the statute made her “removable only for ‘good cause’ ” and otherwise limited
the Attorney General’s oversight of her responsibilities,
Justice Scalia reasoned that “she is not subordinate.”
Ibid. (citation omitted). Likewise, in a dissent in Free
Enterprise Fund, which anticipated this Court’s subsequent majority opinion, then-Judge Kavanaugh explained that “Edmond and the basic principles underlying Article II teach that the key initial question in
determining whether an executive officer is inferior
is whether the officer is removable at will” because
“[r]emovability at will carries with it the inherent power
to direct and supervise.” 537 F.3d at 707. He concluded
that “removable-at-will officers in the executive departments and agencies ultimately report not only to the
President, but also to other superior officers in the Executive Branch chain of command” and therefore “may
properly be considered inferior officers.” Id. at 707
n.15.
Congress has long established important federal offices with substantial discretion and authority that have
been understood to be inferior offices because their occupants may be removed at will by a principal officer.
The Benefits Review Board in the Department of Labor
issues final benefits-related orders that are not subject
to further review by any Executive Branch officer. See
33 U.S.C. 921(b) and (c); Pittson Coal Grp. v. Sebben,
488 U.S. 105, 112 (1988). Yet in United States v. Arthrex, Inc., 594 U.S. 1 (2021), this Court found Benefits
Review Board members “potentially distinguishable”
from the unconstitutionally appointed administrative
patent judges there because Benefits Review Board
17
members “appear to serve at the pleasure of the appointing department head.” Id. at 20-21. Similarly, the
Federal Open Market Committee has final authority
over decisions to contract or expand the supply of
money in the United States, see 12 U.S.C. 263, and yet
its members are inferior officers because the Federal
Reserve Board of Governors “has the authority to remove them at will,” Appointment and Removal of Federal Reserve Bank Members of the Federal Open Market Committee, 2019 WL 11594453, at *7 (Op. O.L.C.
Oct. 23, 2019). And the Postmaster General is “[t]he
chief executive officer of the Postal Service,” 39 U.S.C.
203, and yet is an inferior officer under the Appointments Clause because he “serv[es] at the pleasure of
the” Postal Service’s Board of Governors, Silver v.
United States Postal Serv., 951 F.2d 1033, 1040 (9th Cir.
1991) (per curiam); see The Constitutional Separation
of Powers Between the President and Congress, 20 Op.
O.L.C. 124, 150 (1996).
b. Applying those principles here, Task Force members are inferior officers. As both the court of appeals
and district court recognized, “the HHS Secretary may
remove members of the Task Force at will.” App., infra, 18a; see id. at 119a. After all, the Secretary may
appoint Task Force members when “acting through the
Director” of AHRQ, 42 U.S.C. 299(a), who normally convenes the Task Force, 42 U.S.C. 299b-4(a)(1). See also
§§ 1(a), 2, 80 Stat. 1610. And “the power of removal of
executive officers [i]s incident to the power of appointment.” Myers v. United States, 272 U.S. 52, 119 (1926);
see Free Enter. Fund, 561 U.S. at 509. Nor is there any
statutory text protecting Task Force members from removal. Cf. Collins v. Yellen, 594 U.S. 220, 248 (2021)
(“When a statute does not limit the President’s power
18
to remove an agency head, we generally presume that
the officer serves at the President’s pleasure.”). Thus,
because the Secretary (a principal officer) has “the
power to remove [Task Force] members at will,” the
Court should “have no hesitation in concluding” that
those members are inferior officers serving under the
Secretary’s direction. Free Enter. Fund, 561 U.S. at
510.
If further indicia of secretarial “oversight authority”
were required to render Task Force members inferior
officers, Free Enter. Fund, 561 U.S. at 510, the relevant
laws here provide it. As noted above, Congress has empowered the Secretary to “supervis[e] and direct[]” the
Public Health Service, 42 U.S.C. 202, which includes the
Task Force. The Secretary is also permitted to perform
“all functions of the Public Health Service” and its “officers,” “employees,” and “agencies,” and to “make such
provisions as he shall deem appropriate authorizing the
performance of any of the functions * * * of the Public
Health Service.” §§ 1(a), 2, 80 Stat. 1610. And Congress
gave the Secretary the more specific authority to “establish a minimum interval” before which issuers and
plans must cover a Task Force “A” or “B” recommendation without cost sharing. 42 U.S.C. 300gg-13(b)(1).
The sum total of those secretarial oversight
authorities—especially in conjunction with unfettered
removal power—ensure that the Task Force can be “directed and supervised at some level by [another officer]
who w[as] appointed by Presidential nomination with
the advice and consent of the Senate.” Edmond, 520
U.S. at 663.
c. The court of appeals erred in holding otherwise.
The court acknowledged that “an officer’s removability”
is “the most important” “hallmark[] of inferiority.”
19
App., infra, 17a. And it “agree[d] with the Government
that the HHS Secretary may remove members of the
Task Force at will.” Id. at 18a. But the court nonetheless found insufficient secretarial “supervision” of Task
Force recommendations. Id. at 20a. The court was mistaken.
As an initial matter, the court of appeals identified
no authority for the proposition that at-will removal is a
constitutionally insufficient method through which a
principal officer may supervise an inferior officer. Indeed, neither the court of appeals nor respondents have
identified any case in which an official who was removable at will by a principal officer was herself a principal
officer. This Court should reject that unprecedented
and illogical outcome.
The court of appeals also misunderstood Section
299b-4(a)(6). As noted above, Section 299b-4(a)(6) provides that Task Force members and their recommendations “shall be independent and, to the extent practicable, not subject to political pressure.” 42 U.S.C. 299b4(a)(6). That provision helps ensure that Task Force
members exercise their own best judgment, not regard
themselves as mere representatives of the organizations or professions in which they serve, and not be influenced by outside pressures. See D. Ct. Doc. 65, at 72
(explaining the steps the Task Force takes to ensure
public “confidence in the integrity of the process by
which [it] makes its recommendations”).
To the extent Section 299b-4(a)(6) is also understood
to address the relationship of the Task Force to HHS,
it does not support the court of appeals’ holding here.
Against the backdrop of the Secretary’s broad authority
over the Public Health Service, the reference to “independence” is most naturally read to require the Task
20
Force members to make “unbiased, independent judgments,” even while subject to secretarial supervision
with respect to their conduct and the effect of their recommendations. Kalaris v. Donovan, 697 F.2d 376, 394
(D.C. Cir.), cert. denied, 462 U.S. 1119 (1983). Indeed,
administrative law judges and immigration judges are expected to issue decisions based on their own “independent judgment,” Butz v. Economou, 438 U.S. 478, 513
(1978); see United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 266-267 (1954), but both sets of officials still properly serve as inferior—not principal—
officers. See Freytag v. Commissioner, 501 U.S. 868,
882 (1991) (holding that special trial judges of the Tax
Court were inferior officers, even though they exercised
independent adjudicatory authority).
The court of appeals dismissed this reading of “independent” because of “its juxtaposition to the additional
requirement that the Task Force not be ‘subject to political pressure.’ ” App., infra, 21a n.59. But if both requirements simply “connote[] freedom from outside
control,” as the court posited, ibid., then they would be
redundant—a result this Court normally seeks to avoid.
See, e.g., Ysleta del Sur Pueblo v. Texas, 596 U.S. 685,
698-699 (2022). To give “effect” to both terms so that
neither is “superfluous” or “insignificant,” ibid. (citation omitted), the term “independent” is best read to
clarify that the Task Force should bring to bear its expert, unbiased medical judgment.
Similarly, while Task Force recommendations may
not be “subject to political pressure,” the statute explicitly qualifies that requirement with the phrase “to the
extent practicable.” 42 U.S.C. 299b-4(a)(6). If greater
secretarial supervision over Task Force recommendations is constitutionally necessary, as the Fifth Circuit
21
believed, then the phrase “to the extent practicable” can
be readily interpreted to allow it. This Court construes
statutes to “avoid” rendering them “unconstitutional” if
“there is another reasonable interpretation available.”
Edmond, 520 U.S. at 658. Here, Congress plainly intended to allow a saving construction, if necessary, by
qualifying the limitation on political pressure with the
flexible phrase “to the extent practicable.” 42 U.S.C.
299b-4(a)(6).
The court of appeals declined to adopt that construction because the court thought it would raise a “linedrawing problem” in determining which Task Force
recommendations would be subject to secretarial review. App., infra, 22a. That is wrong. Any constitutionally necessary supervision would be of Task Force
“A” and “B” recommendations alone because only those
recommendations have binding effects on private parties. See 42 U.S.C. 300gg-13(a)(1). Accordingly, only
those recommendations involve the exercise of “significant authority pursuant to the laws of the United
States” that makes Task Force members federal officers in the first place. Arthrex, 594 U.S. at 13 (quoting
Buckley v. Valeo, 424 U.S. 1, 126 (1976) (per curiam)).
The Task Force’s nonbinding activities and recommendations (like its “C” recommendations and provision of
technical assistance to medical professionals) would require no additional secretarial supervision, because
those actions involve no significant exercise of federal
power. See id. at 14 (evaluating supervision only of the
powers “that make[] the [administrative patent judges]
officers exercising ‘significant authority’ in the first
place”) (citation omitted).
The court of appeals also suggested that the government’s reading of Section 299b-4(a)(6) is “inconsistent”
22
with Section 300gg-13(b)(1), which requires the Secretary to establish a minimum interval before Task Force
“A” and “B” recommendations bind issuers and group
health plans. App., infra, 23a. But the specific power
to establish such an interval does not conflict with the
Secretary’s general supervisory power to review and
reject recommendations. Instead, it simply gives the
Secretary the further option of accepting a recommendation while delaying its effective date.
Finally, the court of appeals erred in viewing Arthrex as largely “dispositive” of the inferior-officer
question here. App., infra, 24a. As an initial matter,
the Court in Arthrex made clear that its decision did
“not address supervision outside the context of adjudication,” 594 U.S. at 23, which is not at issue here. But
more fundamentally, the court of appeals overlooked
the key distinction between Arthrex and this case:
whereas the administrative patent judges in Arthrex
were removable by the agency head only “for such cause
as will promote the efficiency of the service,” id. at 26
(quoting 5 U.S.C. 7513(a)), the Task Force members
here are removable by the Secretary at will. Indeed, in
describing the constitutional violation in Arthrex, the
Court specifically emphasized that Congress had “insulat[ed]” the administrative patent judges’ “offices from
removal.” Id. at 23. Accordingly, Arthrex only reinforces that an official’s at-will removability is critical to
the inferior-officer analysis.
2. Even if Task Force members were principal officers,
Section 299b-4(a)(6) can be severed to cure the constitutional defect
Even if this Court were to conclude that Task Force
members are unconstitutionally insulated from secretarial supervision, this Court’s precedent teaches that
23
the proper course is to sever the provision creating such
insulation. The court of appeals erred in declining to do
so.
“ ‘Generally speaking, when confronting a constitutional flaw in a statute, [the Court] tr[ies] to limit the
solution to the problem,’ severing any ‘problematic portions while leaving the remainder intact.’ ” Free Enter.
Fund, 561 U.S. at 508 (citation omitted). And “[b]ecause
‘[t]he unconstitutionality of a part of an Act does not
necessarily defeat or affect the validity of its remaining
provisions,’ the ‘normal rule’ is that ‘partial, rather than
facial, invalidation is the required course.’ ” Ibid. (citations omitted; second set of brackets in original).
In Arthrex, for instance, after concluding that administrative patent judges’ “unreviewable authority”
was “incompatible with their appointment by the Secretary [of Commerce] to an inferior office,” 594 U.S. at 23,
the Court determined that the statute “cannot constitutionally be enforced to the extent that its requirements
prevent the [Patent and Trademark Office] Director
from reviewing final decisions rendered by” the administrative patent judges, id. at 25.4 The Court thus
“sever[ed]” the provision “shielding” the judges’ decisions “from review” by the Director. Id. at 24. And
without that provision, the Court reasoned that “the Director has the authority to provide for a means of reviewing” the relevant decisions “[b]ecause Congress
has vested the Director with the ‘power and duties’ of
The severability portion of the Chief Justice’s opinion was joined
by Justices Alito, Kavanaugh, and Barrett. Arthrex, 594 U.S. at 4.
Justice Breyer issued a concurrence in part and dissent in part,
joined by Justices Sotomayor and Kagan, in which he “agree[d] with
[the] remedial holding” of the Chief Justice’s opinion. Id. at 44.
Thus, seven Justices concurred in the severability analysis.
4
24
the [Patent and Trademark Office].” Id. at 25 (citation
omitted). Accordingly, the Court held that, following
severance, the Director “may review” administrative
patent judges’ decisions and that the statute “otherwise
remains operative.” Ibid.
The same basic logic applies here. The constitutional
defect perceived by the court of appeals was the absence of a “supervisory role for the Secretary” over “the
Task Force’s recommendations”; and in the court’s
view, that defect stemmed from Section 299b-4(a)(6)’s
requirement that recommendations “be ‘independent’
and free from ‘political pressure.’ ” App., infra, 20a,
23a. The court therefore should have severed Section
299b-4(a)(6)’s application to Task Force “A” and “B”
recommendations, thus giving the Secretary “authority
to provide for a means of reviewing” those recommendations. Arthrex, 594 U.S. at 25. And the court should
have left the statute otherwise “operative,” ibid.—
particularly because “nothing in the statute’s text or
historical context makes it ‘evident’ that Congress,
faced with the limitations imposed by the Constitution,
would have preferred” a Task Force that cannot issue
binding preventive-services recommendations as opposed to “a [Task Force] whose members are” supervised by the Secretary, Free Enter. Fund, 561 U.S. at
509 (citation omitted).
The court of appeals “agree[d] with the Government”
that severing Section 299b-4(a)(6) would ensure secretarial supervision of the Task Force. App., infra, 31a.
But the court found that a “decision to disregard § 299b4(a)(6)” would not “also thereby empower the Secretary
to begin reviewing, and possibly rejecting, the Task
Force’s recommendations.” Ibid. (footnote omitted).
Although the court recognized that “[s]uch secretarial
25
review would not conflict with any other applicable statutory provision,” the court saw no affirmative “power to
review the recommendations.” Ibid.
That reasoning conflicts with Arthrex. There, the
Court held that after severing the problematic provision, the Patent and Trademark Office Director “ha[d]
the authority to provide for a means of reviewing” the
relevant decisions. Arthrex, 594 U.S. at 25. In so doing,
the Court relied on a general provision “vest[ing] the
Director with the ‘power and duties’ of the [Patent and
Trademark Office]” and emphasized that “[a] single officer has” long “superintended the activities of” that office. Id. at 24 (citation omitted). Likewise here, the Secretary has the power to “supervis[e] and direct[]” the
Public Health Service, 42 U.S.C. 202, as well as the
power to perform “all functions of the Public Health
Service” and its “officers” and “agencies,” § 1(a), 80
Stat. 1610. And the Secretary has superintended the
Public Health Service’s activities since 1966. See 80
Stat. 1610. Under Arthrex, the Secretary’s longstanding background authority to supervise and perform the
Public Health Service’s functions would amply provide
for secretarial review of Task Force “A” and “B” recommendations following the severance of Section 299b4(a)(6).
The court of appeals’ error stemmed in part from a
fundamental misconception of the Reorganization Plan,
80 Stat. 1610. As noted above, the Reorganization Plan
allows the Secretary to exercise power over “all functions of the Public Health Service,” but it creates an exception for “the functions vested by law in any advisory
council, board, or committee of or in the Public Health
Service.” § 1, 80 Stat. 1610. The court believed that the
26
exception applies to the Task Force and that the Secretary therefore lacks power over the Task Force. App.,
infra, 31a-32a. The court was incorrect.
The exception for “any advisory council, board, or
committee” does not apply to the Task Force. § 1(b), 80
Stat. 1610. Instead, the exception applies to federal advisory committees or councils that have purely recommendatory duties, like the Surgeon General’s advisory
committee that issued a landmark report on the health
effects of smoking just two years before the Reorganization Plan’s adoption. See Public Health Serv., U.S.
Dep’t of Health, Educ., and Welfare, Smoking and
Health: Report of the Advisory Committee to the Surgeon General of the Public Health Serv. (1964),
https://perma.cc/8YPT-M9MB. Indeed, the Federal
Advisory Committee Act (FACA), Pub. L. No. 92-463,
86 Stat. 770 (1972), enacted shortly after the HHS Reorganization Plan, uses the same basic terminology, referring to “committees, boards, commissions, councils,
and similar groups which have been established to advise officers and agencies in the executive branch.”
§ 2(a), 86 Stat. 770; see 5 U.S.C. 1002(a) (Supp. IV 2022).
And FACA makes clear that “the function of advisory
committees should be advisory only.” § 2(b)(6), 86 Stat.
770; see 5 U.S.C. 1002(b)(6) (Supp. IV 2022).
The Task Force is not an advisory body covered by
the Reorganization Plan’s exception. Congress expressly provided that the Task Force is not subject to
FACA. 42 U.S.C. 299b-4(a)(5) (Supp. IV 2022) (“[T]he
Task Force is not subject to the provisions of chapter 10
of Title 5.”). And Task Force “A” and “B” recommendations are not merely advisory but instead may bind
private insurance issuers and group health plans. 42
U.S.C. 300gg-13(a)(1). The court of appeals offered no
27
reason why Congress would create a body within the
Public Health Service whose decisions would bind the
public at large, and then choose not to grant the Secretary authority to oversee that body—even though the
Secretary is vested with all other authority in the Public
Health Service. The more natural reading is that Congress authorized the Secretary to oversee the Task
Force, just as the Secretary oversees the other components of the Public Health Service that exercise significant federal power.
B. The Decision Below Warrants Review
This Court should grant the petition for a writ of certiorari because the Fifth Circuit’s decision declares the
Task Force’s structure unconstitutional and threatens
enormous legal and practical consequences.
1. The Court’s intervention is necessary because the
court of appeals held that “constitutional problems
* * * inhere in the Task Force’s” structure. App., infra,
30a. The Court has recognized that judging the constitutionality of an Act of Congress is “the gravest and
most delicate duty” of the Federal Judiciary. Rostker
v. Goldberg, 453 U.S. 57, 64 (1981) (citation omitted).
Accordingly, “when a lower court has invalidated a federal statute,” the Court’s “usual” approach is to grant
certiorari. Iancu v. Brunetti, 588 U.S. 388, 392 (2019).
Indeed, the Court applies a “strong presumption in favor of granting writs of certiorari to review decisions of
lower courts holding federal statutes unconstitutional.”
Maricopa Cnty. v. Lopez-Valenzuela, 574 U.S. 1006,
1007 (2014) (statement of Thomas, J., respecting the
denial of the application for a stay). And the Court
has repeatedly reviewed such decisions even in the
absence of a circuit conflict. See, e.g., SEC v. Jarkesy,
144 S. Ct. 2117, 2127 (2024); Haaland v. Brackeen, 599
28
U.S. 255, 272 (2023); United States v. Vaello Madero,
596 U.S. 159, 164 (2022); Arthrex, 594 U.S. at 11; Barr
v. American Ass’n of Political Consultants, Inc., 591
U.S. 610, 618 (2020) (plurality opinion); United States v.
Sineneng-Smith, 590 U.S. 371, 375 (2020). That course
is especially warranted here because the court of appeals’ decision is in serious tension with this Court’s
precedent and decisions of other courts of appeals rejecting similar Appointments Clause challenges in
other contexts. See pp. 14-22, supra; Intercollegiate
Broad. Sys., 684 F.3d at 1340-1341.
2. This Court’s review is also warranted because of
the immense legal and practical significance of the court
of appeals’ decision. That decision holds that the Task
Force has been unlawfully exercising governmental authority for the past 14 years. And the decision threatens to disrupt a key part of the ACA that provides
healthcare protections for millions of Americans.
a. Even before the ACA’s enactment, the medical
community had recognized that increased use of preventive services would save more than 100,000 lives and
billions of dollars each year. See American Lung Ass’n
C.A. Amici Br. 13-14 (citing studies). And yet health insurance issuers and group health plans “had little incentive to cover preventive services, the benefits of which
may only be realized in the future.” D. Ct. Doc. 121-2,
at 3 (Apr. 12, 2023). Because of that lack of coverage,
Americans used preventive services at only about half
the recommended rate. See Centers for Medicare &
Medicaid Servs., HHS, Background: The Affordable
Care Act’s New Rules on Preventive Care (July 14,
2010), https://perma.cc/U8K5-MN95.
29
In the ACA, Congress sought to save lives, improve
public health, and reduce healthcare spending by ensuring that Americans could receive preventive services
without co-pays or other cost-sharing mechanisms. See
42 U.S.C. 300gg-13. As one Senator explained, “if you
can detect a disease early, you can not only save lives,
but you can save health care costs because the preventive services only cost a couple hundred dollars, and an
operation you can avoid is tens of thousands of dollars.”
155 Cong. Rec. 33,071 (2009) (statement of Sen. Cardin).
Congress ultimately devoted an entire title of the Act to
“Prevention of Chronic Disease and Improving Public
Health.” Tit. IV, 124 Stat. 538 (capitalization altered).
Congress’s reform has proved effective. See American Pub. Health Ass’n C.A. Amici Br. 15-19. A review
of numerous medical studies found that eliminating cost
sharing has led to increased use of many preventive services, particularly among individuals with lower incomes. Id. at 15-16. In 2018, approximately 100 million
Americans—6 in 10 privately insured people—received
preventive services (including those recommended by
the Task Force) that were covered without cost sharing
under the ACA. American Lung Ass’n C.A. Amici Br.
16. Thus, millions of Americans with private insurance
now have access to preventive services without cost
sharing. See Access to Preventive Services 1; D. Ct.
Doc. 121-1, at 2. And substantial evidence suggests
“that ready access to preventive services without costsharing” has “improve[d] health outcomes” and “reduces the costs of health care delivery for all stakeholders.” Blue Cross Blue Shield Ass’n C.A. Amicus Br. 1011; see American Hosp. Ass’n C.A. Amicus Br. 15.
b. The decision below jeopardizes the availability of
this critical care. Under the logic of that decision, no
30
one—not the Task Force or even the Secretary—can issue preventive-services recommendations that issuers
and plans must cover under Section 300gg-13(a)(1). If
that logic were accepted, then the list of covered preventive services would no longer include the most updated “clinical preventive recommendations.” 42 U.S.C.
299b-4(a)(1). That result would run squarely counter to
Congress’s goal of ensuring “a healthier population”
and “reduc[ing] health care costs by helping individuals
avoid preventable conditions and receive treatment earlier.” 78 Fed. Reg. at 39,872.
Absent this Court’s intervention, even more damaging consequences could imminently follow. As noted
above, the district court granted universal relief, vacating “[a]ll agency action taken to implement or enforce”
the Task Force’s “A” and “B” recommendations since
March 23, 2010, and enjoining the government from
“implementing or enforcing * * * coverage requirements in response to an ‘A’ or ‘B’ rating from the Task
Force in the future.” App., infra, 83a (citation omitted).
The court of appeals reversed that universal remedy
only on the ground that respondents had failed to assert
an APA claim in their operative complaint. Id. at 37a,
42a-43a. But in so doing, the court emphasized that under Fifth Circuit precedent, universal vacatur is “the
‘default’ remedy for unlawful agency action,” and courts
need not consider “the various equities at stake before
determining whether a party is entitled to vacatur.” Id.
at 36a (citation omitted). Thus, unless this Court grants
review, a future plaintiff with Article III standing could
bring an APA claim in a district court within the Fifth
Circuit, challenge the Task Force’s recommendations
31
on Appointments Clause grounds, and obtain a sweeping remedy that would render the Task Force preventive-services scheme inoperative nationwide.
Such a remedy would upend healthcare coverage for
millions of Americans. Under that remedy, issuers and
group health plans could eliminate coverage (or impose
cost-sharing requirements) for any preventive services
recommended by the Task Force since March 23, 2010.
That would include, for example:
•
Statins for cardiovascular disease and stroke:
The Task Force has recommended the use of
statins (medication that reduces cholesterol) to
prevent heart disease and stroke for at-risk
adults between the ages of 40-75. See A&B Recommendations, supra. Heart disease is the
country’s leading cause of death, and statin use
significantly reduces the probability of heart attacks and strokes. D. Ct. Doc. 121-1, at 7. In
turn, “[l]ower copayments for statin medications
have been associated with higher levels of adherence.” Ibid.
•
Lung cancer screenings: The Task Force has
recommended annual lung cancer screenings for
at-risk adults between the ages of 50-80. See
A&B Recommendations, supra. When lung cancer is caught at an early stage, the five-year survival rate is 61%; but when it is caught at a late
stage, that rate is just 7%. D. Ct. Doc. 121-1, at
6. The ACA’s requirement of coverage for lung
cancer screenings without cost sharing is estimated to save approximately 10,000-20,000 lives
per year. Ibid.
32
•
Diabetes screening: The Task Force has recommended that certain at-risk adults receive
screening for prediabetes and type-2 diabetes.
See A&B Recommendations, supra. Type-2 diabetes is preventable and its progression can be
delayed. United States of Care C.A. Amici Br.
22. Yet approximately $1 out of every $4 in
American healthcare costs is spent on caring for
people with diabetes, resulting in $307 billion in
direct medical costs annually. Centers for Disease Control & Prevention, HHS, Health and
Economic Benefits of Diabetes Interventions
(May 15, 2024), https://perma.cc/YW5F-KLX4.
Under the district court’s reasoning and remedy
in this case, insurers would no longer be required
to provide cost-free coverage for many prediabetes screenings and interventions.
The preventive services just mentioned represent
only a fraction of the services that would be jeopardized
by a universal remedy. Other affected services include
cervical and colorectal cancer screenings; hepatitis B
and C screenings; physical therapy for older adults to
prevent falls; ointments to prevent blindness in newborns; and nutritional supplements to support healthy
pregnancies. See A&B Recommendations, supra;
American Pub. Health Ass’n C.A. Amici Br. 8-14 (documenting these and other services).
If all post-2010 Task Force “A” and “B” recommendations became nonbinding nationwide, a material number of issuers and group health plans would be expected
to “drop coverage or impose cost sharing for certain
preventive services.” D. Ct. Doc. 121-1, at 3; see Blue
Cross Blue Shield Ass’n C.A. Amicus Br. 14-15. That
expectation accords with pre-ACA experience, as many
33
issuers and plans did not then cover preventive services
without cost sharing. See D. Ct. Doc. 121-2, at 3-4. And
the expectation also accords with experience under the
ACA, as many issuers and plans have not covered preventive services without cost sharing until the statute
has required them to do so following a Task Force “A”
or “B” recommendation. See ibid.
A recent survey suggests that if issuers and group
health plans did impose cost-sharing requirements for
preventive services, 40% of Americans would be unable
or unwilling to pay out of pocket for those services. See
D. Ct. Doc. 121-1, at 4. That survey is consistent with
substantial literature suggesting that “the presence of
cost-sharing, even if the amount is relatively modest,
deters patients from receiving care.” American Pub.
Health Ass’n C.A. Amici Br. 17 (citation omitted). In
turn, decreased use of preventive services would create
“a sicker population” and “higher overall health care
costs,” D. Ct. Doc. 121-2, at 4—the precise problems
that Congress sought to solve through the ACA.
“In our system of government, [it] is the responsibility of those chosen by the people through democratic
processes” to “weigh [the] tradeoffs” involved in setting
“public health” policy. National Fed’n of Indep. Bus. v.
Department of Labor, 595 U.S. 109, 120 (2022) (per curiam). The Fifth Circuit’s decision here overturns the
policy choices of the people’s representatives based on
a novel and unsupported view about the proper structure of administrative agencies and a disregard for settled severability principles. This Court should grant review and reverse.
34
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.
SAMUEL R. BAGENSTOS
General Counsel
JOEL MCELVAIN
Acting Deputy General
Counsel
JANICE L. HOFFMAN
Associate General Counsel
SUSAN MAXSON LYONS
Deputy Associate General
Counsel for Litigation
JOCELYN S. BEER
LINDSAY S. GOLDBERG
KENNETH R. WHITLEY
Attorneys
Department of Health and
Human Services
SEPTEMBER 2024
ELIZABETH B. PRELOGAR
Solicitor General
BRIAN M. BOYNTON
Principal Deputy Assistant
Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
EPHRAIM A. MCDOWELL
Assistant to the Solicitor
General
MICHAEL S. RAAB
DANIEL AGUILAR
Attorneys
APPENDIX
TABLE OF CONTENTS
Page
Appendix A
— Court of appeals opinion
(June 21, 2024) ......................................... 1a
Appendix B — District court second memorandum
opinion & order on remedies in
relation to plaintiffs’ motion for
summary judgment (Mar. 30, 2023) ... 49a
Appendix C — District court memorandum opinion
and order (Sept. 7, 2022)....................... 85a
Appendix D — Constitutional and statutory provisions:
U.S. Const. Art. II, § 2 ...................... 137a
42 U.S.C. 299b-4 .................................. 138a
42 U.S.C. 300gg-13 .............................. 142a
(I)
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 23-10326
BRAIDWOOD MANAGEMENT, INCORPORATED;
JOHN SCOTT KELLEY, KELLEY ORTHODONTICS;
ASHLEY MAXWELL; ZACH MAXWELL; JOES STARNES,
PLAINTIFFS-APPELLEES/CROSS-APPELLANTS
JOEL MILLER; GREGORY SCHEIDEMAN,
PLAINTIFFS-CROSS-APPELLANTS
v.
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
[Filed:
Jun 21, 2024]
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:
(1a)
2a
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 preventivecare 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
3a
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
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-ofpocket expenses. 2 The ACA does not define “prevenPub. L. No. 111-148, 124 Stat. 119 (2010).
42 U.S.C. § 300gg-13(a) (“A group health plan and a health insurance issuer offering group or individual health insurance shall,
1
2
4a
tive 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 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 “evidencebased 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 preventivecare services.6 Members of the Task Force are “convened” by the Director of the Agency for Healthcare Re-
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.’ ”).
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.”
5a
search and Quality 7 (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
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
42 U.S.C. § 299b-4(a)(1).
Id. § 299b-4(a)(6).
9
Id. § 300gg-13(a)(2).
10
Id. § 202.
11
See 80 Stat. 1610, Reorganization Plan No. 3 of 1966, § 1; see
also 42 U.S.C. §§ 243, 247b.
7
8
6a
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
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 counsel-
42 U.S.C. § 300gg-13(a)(3).
Id. § 300gg-13(a)(4).
14
Id. § 202.
15
See id.
16
Id. § 300gg-13(a).
12
13
7a
ing 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 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
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 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.”).
8a
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 for relief, the plaintiffs sought an injunction prohibiting the Government from enforcing the preventive-care mandates against them.
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.
9a
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.
10a
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
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 nondelegation 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).
23
11a
judgment was later vacated or reversed, 25 so they
agreed to withdraw their opposition to the 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
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.”), with id. at 656 (MARSHALL, 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).
25
12a
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.
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
27
28
Buckley v. Valeo, 424 U.S. 1, 126 (1976).
U.S. CONST. art. II, § 2, cl. 2.
13a
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, 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
Id.
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.”).
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)).
29
30
14a
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 failed
to distinguish between “who are and who are not to be
deemed inferior officers.”37
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).
37
1 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF
THE UNITED STATES 397 (3d ed. 1858).
15a
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 removable by a
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.
38
16a
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
Id. at 671-72.
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).
42
43
17a
members at will” and exercise “other oversight authority” over the Board, like approve its issuance of rules
and sanctions.48 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
Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477,
510 (2010).
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
48
18a
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 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
executive power on his behalf follows from the text of Article II.
. . . ”).
52
Edmond, 520 U.S. at 664.
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.
19a
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 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
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.”).
56
See Free Enter. Fund, 561 U.S. at 510 (“Given that the Commission is properly viewed, under the Constitution, as possessing
54
20a
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 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.
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)).
21a
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 statutorily
required independence. 59 More fundamentally, though,
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.”).
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.
58
22a
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
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.”).
23a
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 recommendations
become binding.62 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
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.
62
24a
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, 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 insur63
64
Arthrex, 594 U.S. at 6.
Id. at 13-14.
25a
ers 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 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 Arthrex68 (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
42 U.S.C. § 300gg-13(a)(1).
See id. §§ 300gg-13(b), 299b-4(a)(6).
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.
65
66
26a
“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 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
Court 73 has embraced ratification as a remedy for an
Id. at 14.
U.S. CONST. art. II, § 2, cl. 2.
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.
70
71
27a
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 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
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).
76
See RESTATEMENT (THIRD) OF AGENCY § 4.02; see also Williams v. Thrasher, 62 F.2d 944, 946 (5th Cir. 1933).
28a
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 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
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).
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.”).
77
29a
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, 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 supId. § 202.
See, e.g., United States v. Granderson, 511 U.S. 39, 54 (1994)
(using “text, structure, and history” to determine statutory meaning).
82
42 U.S.C. § 202.
80
81
30a
port 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 GovId. § 299b-4(a)(1), (3).
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, 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 determin83
84
31a
ernment argues, the 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,
ing 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.
32a
or committee of the Public Health Service”—such as the
Task Force—would 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 § 299b4(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
80 Stat. 1610, § 1(b).
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.”).
88
89
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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 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 reCf. 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.
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.
91
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quirements 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 operation of § 300gg13(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
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.”).
94
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that affects individuals beyond those who are parties to
the immediate dispute. “Under prevailing precedent,”
we have observed, Ҥ 706 extends beyond the mere nonenforcement 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 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 de95
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.
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.”).
36a
scribed 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 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
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.
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 REC101
37a
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, contrary authority. Nevertheless, they offer two counterpoints. Abiding by our
rule of orderliness, 108 we must reject them both.
ORDS 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.
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))).
38a
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 summaryjudgment 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) offers “remedial latitude,” 112 insofar as judgments need not be limited to the kind or
FED. R. CIV. P. 54(c).
Engel v. Teleprompter Corp., 732 F.2d 1238, 1242 (5th Cir.
1984).
111
Portillo v. Cunningham, 872 F.3d 728, 735 (5th Cir. 2017).
112
Deanda, 96 F.4th at 768.
109
110
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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
CHARLES ALLEN WRIGHT & MARY KAY KANE, LAW OF FEDERAL COURTS 631 (8th ed. 2017).
113
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.
114
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find any support for the district court’s 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
Louisiana v. Becerra, 20 F.4th 260, 263 (5th Cir. 2021).
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).
116
117
41a
a universal injunction.” We can agree with the sentiment119 but not with the premise. As we have already
explained, the district court erred in vacating all agency
actions 120 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
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 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.”).
119
42a
for universal injunctive relief. 122 Nor would party-specific 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 preventivecare mandates, the plaintiffs lack any basis for an inE.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).
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”).
122
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junction 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 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
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 nonparties 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.
124
44a
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
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 also id. § 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 Admin125
45a
Task Force, Secretary Becerra has fallback powers on
which he can exercise 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 arbiistrative Review Board within the Department of Labor, transferred to the Secretary of Labor the power to appoint members of
the Administrative Review Board.
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).
46a
trary 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 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
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).
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))).
131
47a
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
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
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 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).
48a
• REMAND for further proceedings to consider
those arguments we have identified as presented
for the first time on appeal.
49a
APPENDIX B
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
Civil Action No. 4:20-cv-00283-O
BRAIDWOOD MANAGEMENT, INC., ET AL., PLAINTIFFS
v.
XAVIER BECERRA, ET AL., DEFENDANTS
Filed:
Mar. 30, 2023
SECOND MEMORANDUM OPINION & ORDER
ON REMEDIES IN RELATION TO PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT
Before the Court are Plaintiffs’ Supplemental Brief
in Support of Plaintiffs’ Motion for Summary Judgment
(ECF No. 98), filed October 24, 2022; Defendants’ Response to Plaintiffs’ Supplemental Motion for Summary
Judgment and Supplemental Cross-Motion for Summary Judgment (ECF No. 99) and Supplemental Appendix in Support (ECF No. 100), filed November 23,
2022; Plaintiffs’ Reply Brief in Support of Supplemental
Motion for Summary Judgment and Response to Defendants’ Supplemental Cross-Motion for Summary
Judgment (ECF No. 111), filed January 6, 2023; and Defendants’ Reply in Support of Supplemental Cross-Motion for Summary Judgment (ECF No. 112), filed Janu-
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ary 27, 2023. Also before the Court are the Amici Curiae Brief for the American Cancer Society, et al.
(ECF No. 107), filed December 1, 2022; and the Brief of
Amici Curiae American Medical Association, et al.
(ECF No. 108), filed December 1, 2022.
On September 7, 2022, this Court resolved the parties’ cross-motions for summary judgment on the merits
partly in favor of Plaintiffs and partly in favor of Defendants. Mem. Op. 41-42, ECF No. 92. The Court
ordered supplemental briefing regarding standing for
the non-Braidwood Plaintiffs, the non-Braidwood religious objector Plaintiffs’ Religious Freedom Restoration Act claim with respect to the PrEP coverage mandate, and the appropriate scope of relief for the successful parties. Id. Having considered the parties’ briefing and applicable law on those issues, and in light of its
prior decision on the merits in favor of Defendants, the
Court DISMISSES with prejudice the religious objector
Plaintiffs’, including Braidwood Management Inc.’s,
contraceptive mandate claim. The non-religious objector Plaintiffs’ contraceptive mandate claim is DISMISSED without prejudice for lack of subject matter jurisdiction. Because the Court concludes that the PrEP
coverage mandate violates RFRA, the Court GRANTS
the non-Braidwood religious objector Plaintiffs’ summary judgment motion and DENIES Defendants’ summary judgment motion on this claim.
Therefore, the Court GRANTS all religious objector
Plaintiffs’, including Braidwood Management Inc.’s, request for declaratory and injunctive relief as to this
claim. Finally, in light of its prior ruling that 42 U.S.C.
§ 300gg-13(a)(1)’s compulsory preventive care coverage
requirements in response to an “A” or “B” rating by the
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U.S. Preventive Services Task Force made on or after
March 23, 2010 violates the Appointments Clause, the
Court GRANTS Plaintiffs’ request for declaratory and
injunctive relief with respect to this claim, VACATES
any and all agency actions implementing or enforcing
that provisions’ mandatory coverage requirements, and
ENJOINS Defendants and their officers, agents, servants, and employees from implementing or enforcing the
compulsory preventive care coverage mandate in the future.
I.
BACKROUND
A.
Legal Background
On March 23, 2010, Congress enacted the Patient
Protection and Affordable Care Act (ACA), which dictates four categories of preventive care services most
private health insurance companies must cover. 42
U.S.C. § 300gg-13. The Act empowers three agencies
—the U.S. Preventive Services Task Force (PSTF), the
Health Resources and Services Administration (HRSA),
and the Advisory Committee on Immunization Practices
(ACIP)—to unilaterally determine what kinds of preventive care fall within each category of mandatory coverage by issuing guidelines or recommendations that, by
operation of the statute, carry the force of law. Id.
Specifically, PSTF recommends “A” or “B” ratings for
specific evidence-based items and services for all patient
demographics; HRSA issues “comprehensive guidance”
regarding preventive care and screening for infants,
children, adolescents, and women; and ACIP recommends certain immunizations. Id. § 300gg-13(a)(1)-(4).
Private health insurers must cover and cannot impose
cost sharing requirements for these recommended services. Id. § 300gg-13(a).
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While all three agencies are affiliated with the U.S.
Department of Health and Human Services (HHS), they
are not all identically structured. ACIP and HRSA
were created by the Secretary of HHS to provide vaccine recommendations and guidance on programs and
activities within the agency.1 See 42 U.S.C. § 217a(a)
(authorizing HHS Secretary to create advisory councils
or committees). Both ACIP and HRSA are ultimately
subject to the “supervision and direction” of the HHS
Secretary. 42 U.S.C. §§ 202, 243, 247b.2 By contrast,
PSTF is a volunteer body of non-federal experts that
provides evidence-based recommendations related to
preventive care services and health promotion. 3 And
though the Task Force receives support from AHRQ, an
agency within HHS, the Task Force is not itself a part
of AHRQ or HHS.4 42 U.S.C. § 299b-4(a)(1). When it
created PSTF, Congress specified that the Task Force’s
recommendations “shall be independent and, to the ex-
Mem. Op. 3, ECF No. 92.
Mem. Op. 14-17, ECF No. 92 (recognizing HHS Secretary’s authority to ratify actions taken by ACIP and HRSA).
3
Defs.’ App. in Supp. of Cross-Mot. for Summ. J. 66, ECF No.
65. Though PSTF is not housed within another federal agency,
given its authority to compel insurers to cover recommended services through issuance of ratings in conjunction with the ACA’s
compulsory coverage requirements, the Task Force members function as “officers” of the United States that exercise significant legal
authority and are therefore referred to as an “agency” for purposes
of this Opinion. Mem. Op. 18-24, ECF No. 92; see also 5 U.S.C. §
701 (defining “agency” as “each authority of the Government of the
United States, whether or not it is within or subject to review by
another agency”).
4
Defs.’ Resp. to Pls.’ Mot. for Summ. J. 40, ECF No. 64.
1
2
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tent practicable, not subject to political pressure.”
§ 299b-4(a)(6).
Id.
Since the ACA’s enactment, the agencies have issued
several such pronouncements. Among those, and relevant to the case at hand, are HRSA’s 2011 guidance compelling insurance companies to cover all FDA-approved
contraceptive methods—including certain abortifacients
(“contraceptive mandate”)—and PSTF’s 2019 issuance
o
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