On June 21, 2024, a three-judge panel of the United States Court of Appeals for the Fifth Circuit issued an opinion in Braidwood Management Inc. et al. v. Xavier Becerra et al. reversing an injunction entered by the lower court that prevented the enforcement of certain ACA preventative care coverage mandates nationwide.
The case was brought by businesses and individuals with religious objections to certain of the coverage mandates (including contraception, HPV vaccines, and HIV prophylactic medications) against HHS, the Department of the Treasury, and the Department of Labor. While the plaintiffs challenged the coverage mandates on multiple grounds, the district court granted summary judgment and entered injunctive relief on the grounds that the United States Preventive Services Task Force (the Task Force) does not have the power to issue preventive-care recommendations that insurers must cover by law.
The Affordable Care Act (ACA) requires private insurers to cover certain preventive-care services without cost sharing. While the ACA does not define “preventive care,” it empowers three agencies affiliated with HHS to determine what services insurers will be required to cover under four different categories of care. The first category of mandated coverage includes “evidence-based items or services that have in effect a rating of ‘A’ or ‘B’ in the current recommendations of the United States Preventive Services Task Force.” The Task Force is a body of sixteen volunteers “with appropriate expertise” who serve four-year terms and “periodically convene” to make recommendations on covered preventive care services. Members of the Task Force are “convened” by the Directory of the Agency for Healthcare Research and Quality, which is a subagency within the Public Health Service, itself a subagency within HHS. While there are no removal protections for members of the Task Force, the ACA provides that “all members of the Task Force…shall be independent and, to the extent practicable, not subject to political pressure.”
In one of the three summary judgment rulings made in the case, the district court ruled in favor of the plaintiffs, holding that the Constitution’s Appointments Clause prohibits the Task Force from issuing binding preventive health mandates because they are “officers of the United States” who were not properly appointed under that constitutional provision. The district court entered an injunction and vacatur under § 706 of the Administrative Procedure Act (APA), which vacated all agency action taken to enforce the Task Force’s preventive-care recommendations and enjoined the Government from enforcing the preventive-care mandates against anyone. In the other summary judgment rulings, the district court ruled against the plaintiffs, holding that the Advisory Committee on Immunization Practices (ACIP) and the Health Resources and Services Administration (HRSA) do not violate the appointments clause because their recommendations are ultimately reviewable by the HHS Secretary or one of his inferior officers.
The Fifth Circuit’s review of the District Court’s opinion focused largely on the question of whether members of the Task Force are “principal” officers of the United States – who must be appointed by the President and confirmed by the Senate – or “inferior” officers who may be appointed by department heads. The Fifth Circuit held that the Task Force members are “principal” officers based largely on the fact that their recommendations are unreviewable by the HHS Secretary, and that this infirmity could not be remedied by the HHS Secretary’s purported “ratification” of the Task Force’s recommendations because the ACA is clear that the power entrusted to the Task Force was not intended to be given to or subject to the oversight of a politically accountable officer.
More significantly, the Fifth Circuit partially reversed the district court’s nationwide injunction and vacatur of any HHS enforcement actions made pursuant to the Task Force’s recommendations. The district court’s grant of relief relied on § 706 of the Administrative Procedure Act, but the Fifth Circuit held that the plaintiffs were not entitled to that broad scope of relief because the plaintiffs had not pled a claim under that provision of the APA.
On the plaintiffs’ cross-appeal challenging the district court’s grant of summary judgment on the HRSA and ACIP recommendations, the Fifth Circuit remanded to the district court to consider for the first time the plaintiffs’ APA argument against the HHS Secretary’s memo purporting to “ratify” those bodies’ actions.
The Fifth Circuit’s opinion can be found here.
