Motion for a preliminary injunction against the Vaccine & Mask Requirements to Mitigate the Spread of COVID-19 in Head Start Programs interim final rule; Motion for an injunction pending appeal; Administrative Procedures Act (APA); Use of an interim final rule instead of notice-&-comment rulemaking; 5 USC § 553(b)(B); Biden v Missouri; Whether the U.S. Department of Health & Human Services (HHS) had the statutory authority to issue a vaccine requirement for Head Start program staff, contractors, & volunteers

[This appeal was from the ED-MI.] In an order, the court held that plaintiffs-Head Start grantees were not entitled to an injunction against the Head Start vaccine mandate pending an appeal. It concluded they were unlikely to succeed on the merits of their claim that the HHS violated the APA when it promulgated the vaccine requirement through an interim final rule instead of notice-and-comment rulemaking. The court noted that the “HHS may use an interim final rule instead of notice-and-comment rulemaking ‘when the agency for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.’” It compared the facts in this case with those in Missouri, and concluded that, “[g]iven the similarity between the interim final rule at issue here and the rule that the Supreme Court upheld in Missouri, the plaintiffs are unlikely to prevail on their claim that the lack of notice-and-comment rulemaking violated the” APA. As to plaintiffs’ lack of statutory authority argument, the court found it likely the HHS “has the statutory authority to issue a vaccine requirement for Head Start program staff, contractors, and volunteers. The statute creating the Head Start program gives the Secretary of HHS the power to promulgate regulations to promote the health and well-being of the children in the program.” The statute gives the Secretary “broad” authority, including specifically to “remedy ‘health’ risks to children in the program.” The court again cited Missouri, where “the Supreme Court held that similar statutory language permitted HHS to promulgate a vaccine requirement for the staff of Medicare and Medicaid facilities.”