The Fifth Circuit sent Braidwood back to the District court to address “compelling—and largely unrebutted—arguments that the Secretary’s ratification [of the ACIP and HRSA recommendations] presents serious APA concerns.”

As background, the ACA requires that plans cover four categories of ACA preventive care services with no cost-sharing:

1. United States Preventive Services Task Force (“USPSTF”) recommended preventive services rated ‘A’ or ‘B’;
2. Centers for Disease Control and Prevention Advisory Committee on Immunization Practices (“ACIP”) recommended immunizations;
3. Any additional preventive care and screenings for women not recommended by the USPSTF but provided for in the Health Resources and Services Administration’s (“HRSA”) guidelines; and
4. Preventive screenings and care for infants, children, and adolescents that are provided for in the HSRA guidelines.

This case has a long history.  The plaintiffs sued the Federal government and several cabinet secretaries seeking to enjoin enforcement of this requirement.  Among other claims, plaintiffs alleged that the structure of the USPSTF, ACIP, and HRSA violated the Appointments Clause of the Constitution.

In 2022, the District Court for the Northern District of Texas agreed as to the members of the USPSTF but rejected the challenge to the ACIP and HRSA.  The court vacated agency action taken to enforce the preventive care mandates and enjoined the government from enforcing the rules.  Both sides appealed.

In its original opinion, the Fifth Circuit held that USPSTF members are principal officers who were not validly appointed under Article II and affirmed the injunction as to plaintiffs but reversed the universal injunction.  On plaintiffs’ cross-appeal, the Fifth Circuit noted that, unlike the USPSTF, ACIP and HRSA operate under the supervisory authority of the Secretary of HHS.  The government argued that the Secretary exercised this authority to cure any Appointments Clause defect by ratifying ACIP’s and HRSA’s recommendations.  The court noted that the plaintiffs “raised compelling—and largely unrebutted—arguments that the Secretary’s ratification memo presents serious APA concerns" but concluded that those issues should be addressed by the district court in the first instance and remanded the cross-appeal for that reason.

DOJ appealed the case to the Supreme Court to answer whether the USPSTF members' appointment was constitutional.  On June 27, the Supreme Court held that USPSTF members’ appointments were constitutional and remanded the case back to the Fifth Circuit for further proceedings.  The Supreme Court did not address the plaintiff's cross-appeal.  

On August 26, the Fifth Circuit remanded the case to the District Court for further proceedings consistent with the Supreme Court decision and the prior Fifth Circuit decisions that were not impacted by the Supreme Court's decision.  

For more information on the history of this litigation and the potential impacts of the decisions, see our prior alerts:

• https://www.groom.com/resources/supreme-court-to-decide-legality-of-acas-preventive-services-mandate/
• https://www.groom.com/resources/latest-update-to-the-ongoing-challenge-to-the-acas-preventive-services-mandate/ 
• https://www.groom.com/resources/braidwood-a-challenge-to-the-acas-preventive-services-mandate/