State of Texas et al v. Becerra, et al

Filing 42

MEMORANDUM OPINION AND ORDER: The Court grants the plaintiffs motion for a preliminary injunction #6 . The Court orders that defendants are preliminarily enjoined from implementing and enforcing the Interim Final Rule with Comment Period, Vaccine and Mask Requirements to Mitigate the Spread of COVID-19 in Head Start Programs, 86 Fed. Reg. 68,052 (Nov. 30, 2021), in the state of Texas pending a trial on the merits of this action or until further order of this Court. Defendants shall immediately cease all implementation or enforcement of the Interim Final Rule with Comment Period as to any Head Start program within the State of Texas. Because defendants have appeared and the Court conducted a hearing on plaintiffs motion #6 , Federal Rule of Civil Procedure 65(b) no longer applies. See e.g., New England Health Care, Emps. Union, Dist. 1199, SEIU/AFL-CIO v. Rowland, 170 F. Supp. 2d 199, 201 n.2 (D. Conn. 2001) (denying TRO as moot in light of the hearing on the preliminary motion). Therefore, the Court denies #6 plaintiffs request for a temporary restraining order as moot.The Court further orders that no security bond shall be required under Federal Rule of Civil Procedure 65(c). (Ordered by Judge James Wesley Hendrix on 12/31/2021) (egp)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
STATE OF TEXAS, et al.,
Plaintiffs,
v.

No. 5:21-CV-300-H

XAVIER BECERRA, Secretary of Health
and Human Services, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
In response to the President’s plan to increase COVID-19 vaccinations, the Department
of Health and Human Services created two unprecedented conditions on funding for Head
Start programs, which provide education-related services to needy children. The agency’s Rule
requires Head Start staff to be vaccinated and near-universal masking of children and adults.
It is undisputed that an agency cannot act without Congressional authorization. Thus,
the question here is whether Congress authorized HHS to impose these requirements. HHS
claims that the mandates are authorized as “program performance standards” related to:
“administrative and financial management,” “the condition . . . of facilities,” or “such other
standards” the agency “finds to be appropriate.” Texas and the Lubbock Independent School
District argue that the Act does not authorize such mandates, that irreparable injury would
result from them, that HHS failed to comply with the Administrative Procedure Act in
adopting the conditions, and that the mandates violate various Constitutional doctrines. They
seek an injunction to bar the mandates’ enforcement. Because the Court concludes that there
is a substantial likelihood that the mandates do not fit within the Head Start Act’s authorizing
text, that HHS failed to follow the APA in promulgating the mandates, and that the mandates
are arbitrary and capricious, the Court preliminarily enjoins their enforcement in Texas.

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Factual and Procedural Background
The Department of Health and Human Services (HHS) offers grants to schools,

nonprofits, and other local organizations to run Head Start programs. Those programs
“promote the school readiness of low-income children” by creating supportive learning
environments and by providing health, educational, nutritional, social, and other services to
young children and their families. 42 U.S.C. § 9831. Many Head Start programs are
operated through local school districts, like Lubbock Independent School District (LISD), in
the form of pre-K classes. See, e.g., Dkt. No. 8-3 at 3. Texas Tech operates an Early Head
Start program, which is offered for children under age three. Dkt. No. 8-4 at 2; see 42
U.S.C. § 9840a. In 2021, HHS awarded $842,280,184 in grants to Texas Head Start
programs. Dkt. No. 8-2 at 35. LISD and Texas Tech University received a portion of this
funding. Dkt. Nos. 8-2 at 2, 9, 10, 30; 8-3 at 3; 8-4 at 2.
In response to the COVID-19 pandemic, the Office of Head Start (OHS) allowed
local providers to adjust their services as necessary depending community conditions and
needs. Dkt. Nos. 8-5 at 2-3; 27 at 4 (listing the OHS May 2021 guidance in the
administrative record); 86 Fed. Reg. 68,058 n.66 (citing the guidance in the interim final
rule). In its May 2021 guidance, the agency recognized that “[t]o date, OHS provided
needed flexibilities and guidance that allowed programs to adapt services based on the
changing health conditions in their communities.” Dkt. No. 8-5 at 2. As a result, some
Head Start programs offered virtual and remote services, but “[m]any programs continued
to provide in-person services for children and families throughout the COVID-19
pandemic.” Id. OHS knew, however, that “virtual and remote services . . . are not an
acceptable replacement for in-person comprehensive services.” Id. at 3. In fact, OHS

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reported that “[a]lmost one third of children served in Head Start programs before the
pandemic—approximately 250,000—have not received services to date.” Id. at 4. Thus,
OHS’s May 2021 guidance instructed its in-person programs “to continue serving children
in person, as local health conditions allow.” Id. at 2. OHS also made clear that the virtual
programs “are expected to move to in-person services, as local health conditions allow.” Id.
at 3. According to the CDC, OHS’s flexible approach to early childhood education during
the pandemic was successful: “Since the COVID-19 pandemic started, Head Start and Early
Head Start programs successfully implemented CDC-recommended mitigation strategies
and applied other innovative approaches to limit SARS-CoV-2 transmission among
children, teachers, and other staff members by allowing maximum program flexibility and
allocating financial and human resources.” 1
In the 2020–21 school year, LISD implemented a mask mandate in line with
Governor Abbott’s Executive Order and Texas Education Agency public-health guidance.
Dkt. 39-4 at 3. Masks were required for students in fourth grade and above. Id. In the
2021–22 school year, however, LISD decided that masks would be welcome and
vaccinations encouraged, but neither would be mandatory. Id. at ¶ 5–6. Before the school
year began, 84% of LISD’s staff reported having received at least one vaccine dose. Id. at
¶ 6. Of 1,847 active cases since August 18, 2021, 26 were pre-K students and none were preK staff. Id. at ¶ 5.

CDC Morbidity and Mortality Weekly Report (Dec. 11, 2020), https://www.cdc.gov/mmwr/
volumes/69/wr/mm6949e3.htm [https://perma.cc/LY6K-ZS7Y] (available at Dkt. No. 29-9).

1

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On September 9, 2021, the President announced “a new plan to require more
Americans to be vaccinated.” 2 He said that “our patience is wearing thin” with the
unvaccinated, and “we must increase vaccinations among the unvaccinated with new
vaccination requirements.” Id. Those requirements would apply to employers with 100 or
more employees, healthcare workers, executive branch federal employees, and “all of nearly
300,000 educators” in the Head Start program. Id. The President did not hide the fact that
his school-related mandate “takes on elected officials and states that are undermining you
and these lifesaving actions.” Id. He said that “if these governors won’t help us beat the
pandemic, I’ll use my power as President to get them out of the way.” Id.
On November 30, 2021, the Administration for Children and Families (ACF)—a
division of HHS—issued an Interim Final Rule with Comment (Rule) imposing mask and
COVID-19 vaccine mandates in Head Start programs. See Vaccine and Mask Requirements
to Mitigate the Spread of COVID-19 in Head Start Programs, 86 Fed. Reg. 68,052 (Nov. 30,
2021) (to be codified at 45 C.F.R. pt. 1302). As its name suggests, the Rule’s purpose is “to
protect the health and safety of Head Start staff, children, and families and to mitigate the
spread of SARS–CoV–2 in Head Start programs.” Id. at 68,053.
ACF promulgated the Rule by adding the mandates to existing “Head Start Program
Performance Standards.” Id. at 68,052. Specifically, the Rule requires “universal masking

2

Joseph Biden, Remarks by President Biden on Fighting the COVID-19 Pandemic (Sept. 9, 2021),
https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/09/09/remarks-bypresident-biden-on-fighting-the-covid-19-pandemic-3/ [https://perma.cc/VW2F-3Z47].

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for all individuals aged 2 years and older,” with limited exceptions, 3 in all indoor settings
where Head Start services are provided and in Head Start vehicles. Id. at 68,060. And “for
those not fully vaccinated,” masks are required “outdoors in crowded settings or during
activities that involve sustained close contact with other people.” Id. For purposes of the
Rule, “being outdoors with children inherently includes sustained close contact for the
purposes of caring for and supervising children.” Id.
The Rule also requires “all Head Start staff, certain contractors, and volunteers in
classrooms or working directly with children to be fully vaccinated,” with certain
exemptions. 4 Id. For those granted an exemption from the vaccine requirement, weekly
COVID-19 testing is required. Id. at 68,061.
The Rule took effect immediately—November 30, 2021—before public notice-andcomment procedures were followed. Given the threat posed by rising COVID-19 cases and
the hope to return fully to in-person instruction in 2022, the Secretary found that there was
“good cause” to waive the notice-and-comment procedures normally required when an
agency promulgates a regulation. See id. at 68,059 (finding good cause to waive notice-andcomment procedures). The mask requirement was effective immediately, while the vaccine
mandate requires compliance by January 31, 2022. Id. at 68,060–62. Under the Rule,

3

“Exceptions are noted for when individuals are eating or drinking; for children when they are
napping; for the narrow subset of persons who cannot wear a mask, or cannot safely wear a mask,
because of a disability as defined by the Americans with Disabilities Act (ADA), consistent with
CDC guidance on disability exemptions; and for children with special health care needs.” 86 Fed.
Reg. at 68,060 (footnotes omitted).

4

Exemptions are available “for those (i) for whom a vaccine is medically contraindicated, (ii) for
whom medical necessity requires a delay in vaccination, or (iii) who are legally entitled to an
accommodation with regard to the COVID–19 vaccination requirement based on an applicable
Federal law.” Id. at 68,061 (footnotes omitted). Accommodations based on federal law may be
granted for “a disability under the ADA, medical condition, or sincerely held religious beliefs,
practice, or observance.” Id.

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individuals are deemed “fully vaccinated” two weeks after receiving the second dose in a
two-dose series (i.e. Moderna and Pfizer) or a single-dose vaccine (i.e. Johnson & Johnson).
Id. at 68,060. But, to allow flexibility, staff and volunteers who have received their final
dose of a COVID-19 vaccine by January 31, 2022 are “considered to have met the
vaccination requirement, even if they have not yet completed the 14-day waiting period.”
Id. at 68,062. Because the Moderna vaccine requires four weeks in between doses, an
unvaccinated person who intends to comply with the Rule by receiving the Moderna
vaccine must receive his or her first dose by January 3, 2022. Programs that refuse to
implement the Rule’s dual mandates risk losing their Head Start funding entirely. See 42
U.S.C. § 9836a(e)(1)(C); 45 C.F.R. § 1304.5 (2021) (“Termination and denial of
refunding”).
Plaintiffs—the State of Texas and the LISD—filed this action on December 10, 2021
seeking to enjoin the Rule’s enforcement. Dkt. No. 1. They argue that several statutory and
constitutional defects render the Rule procedurally and substantively invalid.
The plaintiffs filed a motion seeking a temporary restraining order and a preliminary
injunction on December 14. Dkt. Nos. 6; 8. Two days later, the defendants 5 appeared
through counsel. Dkt. No. 14. Aware of the January 3 deadline for those who would
obtain the Moderna vaccine, the Court set an expedited briefing schedule. Dkt. No. 15.

5

Defendants are Xavier Becerra, in his official capacity as Secretary of the United States
Department of Health and Human Services; the United States Department of Health and Human
Services; Jooyuen Chang, in her official capacity as Principal Deputy Assistant Secretary; the
Administration for Children and Families; Katie Hamm, in her official capacity as Deputy
Assistant Secretary for Early Childhood Development; the Office of Early Childhood
Development; Bernadine Futrell, in her official capacity as Director of the Office of Head Start; the
Office of the Head Start; and Joseph R. Biden, in his official capacity as President of the United
States.

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On December 23, the defendants filed a response brief. Dkt. Nos. 24; 25; 26. Four days
later, they filed the administrative record. Dkt. Nos. 27–35. The plaintiffs then filed their
reply on December 28. Dkt. No. 38.
The Court held a hearing to allow the parties to offer evidence and argument.
Plaintiffs offered 18 exhibits into evidence, while the defendants offered none. Tr. at 10.
With two exceptions, the defendants stipulated to the admissibility of plaintiffs’ exhibits. Id.
at 6; Dkt. No. 39. Defendants objected to the use of the declarations attached to the
plaintiff’s filings (Dkt. Nos. 39-3; 39-4; 39-7; 39-8; 39-9; 39-15; 39-16; 39-17) for any reason
other than to analyze irreparable harm and the public interest. Dkt. No. 39; Tr. at 86. They
also objected in full to plaintiffs’ proposed Exhibit 14, which is a sample of public
comments. Dkt. No. 39-14. Thus, the Court admitted plaintiffs’ Exhibits 1–13 and 15–18.
Tr. at 6, 10. It took the admissibility of plaintiffs’ Exhibit 14 and the permissible use of the
declarations under advisement. 6 Id. at 10.
During oral argument, counsel for the defendants made multiple concessions
relevant to the Court’s analysis. First, she noted that the vaccine and mask mandates are
not “health services” within the meaning of the Head Start Act. Id. at 40. Second, she
explained that the agency does not assert that the Rule was or could be authorized under 42
U.S.C. § 9836a(a)(1)(A), which are “performance standards with respect to services required
to be provided, including health . . . services.” Id. at 40–41. Third, while she continued to
argue that the Rule could be authorized as an “administrative” standard under
subsection (C), she admitted that it could not qualify as a “financial management standard.”

6

Because the Court does not rely on Exhibit 14 in its analysis, nor consider the declarations outside
of the harm and public-interest issues, the Court denies the objections as moot.

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Id. at 48. And finally, she admitted that, while other health services made available to
children by Head Start are “strongly encouraged,” this is the first time that Head Start has
ever mandated a medical procedure as a precondition to new or ongoing employment. Id.
at 46–47. The Rule is unprecedented, although counsel asserted that it is justified by an
unprecedented pandemic. Id. at 52, 55–58.
Counsel for Texas likewise made an important clarification during argument.
Regarding Texas’s request for a nationwide injunction, he admitted that the Fifth Circuit
recently limited a nationwide injunction and that relevant precedent on the topic appeared
inconsistent. Id. at 90–91. He agreed that the great majority of evidence before the Court
was limited to the mandate’s effect on Texas and school districts in Texas. Id. at 91. He
explained that Texas’s request for nationwide relief was not based on case law, but rather
the Administrative Procedure Act, which instructs courts to set aside unlawful agency
actions. Id. at 90–91.
2.

Preliminary Injunction Standard
Federal Rule of Civil Procedure 65(a) authorizes federal courts to issue preliminary

injunctions. The Court need not address Plaintiffs’ Motion for Temporary Restraining
Order under Rule 65(b) because defendants received notice, made an appearance, and the
issues have been fully briefed and argued by the parties.
“A preliminary injunction is an extraordinary remedy,” requiring a “clear showing”
that plaintiffs are entitled to such relief. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22,
24 (2008). “In order to obtain a preliminary injunction, a movant must demonstrate (1) a
substantial likelihood of success on the merits; (2) a substantial threat of irreparable harm if
the injunction does not issue; (3) that the threatened injury outweighs any harm that will

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result if the injunction is granted; and (4) that the grant of an injunction is in the public
interest.” Moore v. Brown, 868 F.3d 398, 402–03 (5th Cir. 2017) (citing Byrum v. Landreth,
566 F.3d 442, 445 (5th Cir. 2009)). “Likelihood of success and irreparable injury to the
movant are the most significant factors.” Louisiana v. Becerra, --- F.4th ---, 2021 WL
5913302, at *1 (5th Cir. Dec. 15, 2021) (citing Veasey v. Perry, 769 F.3d 890, 892 (5th Cir.
2014)).
3.

Analysis
A.

Likelihood of Success on the Merits

The Court need not reach all of plaintiffs’ arguments to resolve their motion. The
Court finds that plaintiffs’ have demonstrated a substantial likelihood of success on the
merits of four of their claims.
i.

Statutory Authority

First, the Court finds that plaintiffs have demonstrated a substantial likelihood of
success on their claim that the Secretary issued the Rule without statutory authority.
A federal agency cannot act absent Congressional authorization. La. Pub. Serv. Comm’n v.
FCC, 476 U.S. 355, 374 (1986). It cannot confer power upon itself. Id. “To permit an
agency to expand its power in the face of a congressional limitation on its jurisdiction would
be to grant to the agency power to override Congress.” Id. at 374–75. Therefore, under the
Administrative Procedure Act (APA), courts must “hold unlawful and set aside agency
action” that is “in excess of statutory jurisdiction, authority, or limitations, or short of
statutory right.” 5 U.S.C. § 706(2)(C).
When reviewing an agency’s construction of a statute, courts must use the ordinary
tools of statutory interpretation. First, under the Chevron two-step framework, a court must

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consider “whether Congress has directly spoken to the precise question as issue.” Chevron,
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). If Congress has directly
spoken on the precise issue, the court “must give effect to the unambiguously expressed
intent of Congress.” Id. at 842–43. But “if the statute is silent or ambiguous with respect to
the specific issue, the question for the court is whether the agency’s answer is based on a
permissible construction of the statute.” Id. at 843.
a.

The plain language of the statutory provisions on which the
Secretary relies do not authorize mask and vaccine mandates.

The Court begins with the text of defendants’ cited authority. HHS claims that
subsections 641A(a)(1)(C), (D), and (E) of the Head Start Act 7 authorize the Rule. 86 Fed.
Reg. at 68,053 (citing § 9836a(a)(1)(C)–(E)). The relevant language appears as follows:
§ 9836a. Standards; monitoring of Head Start agencies and programs
(a) Standards
(1) Content of standards
The Secretary shall modify, as necessary, program
performance standards by regulation applicable to Head
Start agencies and programs under this subchapter,
including—
...
(C) administrative and financial management standards;
(D) standards relating to the condition and location of
facilities (including indoor air quality assessment
standards, where appropriate)
...
(E) such other standards as the Secretary finds to be
appropriate.
7

Defendants cite 42 U.S.C. § 9836a(a)(1)(C)–(E), as amended by the Improving Head Start for
School Readiness Act of 2007, Pub. L. No. 110–34, § 8, 121 Stat. 1385–96 (2007). For simplicity,
the Court refers to the current, amended version of this statute as the “Head Start Act.”

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42 U.S.C. § 9836a.
Plaintiffs argue that the Secretary’s ability to “modify” these “program performance
standards” does not authorize a vaccine mandate for all Head Start staff, contractors, and
volunteers, nor universal masking for all individuals age two and older. Dkt. No. 8 at 19
(citing § 9836a(a)(1)). The Court agrees.
Applying Chevron’s first step, Congress has not spoken to the precise question at
issue. The statutory subsections on which defendants rely do not mention vaccination or
masking. To some degree, this is not surprising. The “program performance standards” in
the Head Start Act were last amended in 2007, when “masking” was not the common term
it is today. See supra note 7. That “vaccination” or “immunization” are missing from the
statute is more telling. State laws and regulations have long required that at least children
be vaccinated against many communicable diseases. See, e.g., 25 Tex. Admin. Code
§ 97.63(2)(A) (requiring that “[c]hildren enrolled in child-care facilities, pre-kindergarten, or
early childhood programs” be immunized against a host of diseases).
Congress could have spoken directly to the issue of vaccination, masking, or other
precautions in the last year when passing other COVID-19-related legislation, but it did not
and has not. 8 Rather than amend the Head Start Act, Congress only granted funds “for
carrying out” the existing “Head Start Act.” See Consolidated Appropriations Act, 2021,
Pub. L. No. 116–260, 134 Stat. 1181, 1583–84 (2020). Moreover, the subsections on which
the defendants rely do not mention broader health and safety precautions that Head Start

8

As counsel for the defendants conceded at the hearing, Congress could not have foreseen the
COVID-19 pandemic when it enacted the Head Start Act. Tr. at 57–58. That argument does not
help the defendants, though. Rather, it underscores the need to reach Chevron’s second step.

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staff or children must take. Subsections 641A(a)(1)(C), (D), and (E) are silent as to the
“precise question at issue.” Chevron, 467 U.S. at 843.
And under subsection (A) of Section 641A(a)(1)—a provision the Secretary did not
cite as authority for the Rule—Congress also did not speak to the precise question at issue,
even though that subsection allows the Secretary to modify “program performance
standards” for “services required to be provided, including health.” 42 U.S.C.
§ 9836a(a)(1)(A). Though this provision mentions the word “health,” it concerns providing
services to children—not conditioning participation or employment on mask or vaccine
requirements. Id.
Therefore, the Court must decide, under step two of the Chevron framework, whether
“the agency’s [interpretation] is based on a permissible construction of the statute.” 467
U.S. at 843. The plain language of defendants’ cited authority, the statutory context, and
the existing regulations all confirm that the Secretary’s interpretation of “performance
standards” is not a permissible construction of the statute. The Court finds that plaintiffs are
substantially likely to succeed on their claim that defendants exceeded their statutory
authority.
As mentioned, the Secretary invokes subsections 641A(a)(1)(C), (D), and (E) of the
Head Start Act to claim the broad authority for issuing this Rule. 86 Fed. Reg. at 68,053.
Those subsections authorize the Secretary to “modify, as necessary, program performance
standards by regulation . . . including—(C) administrative and financial management
standards; (D) standards relating to the condition and location of facilities (including indoor
air quality assessment standards, where appropriate) . . . [and] (E) such other standards as
the Secretary finds to be appropriate.” 42 U.S.C. § 9836a(a)(1)(C)–(E).

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At the outset, Congress appears to have limited the scope of the Secretary’s power.
The Secretary may only “modify” program performance standards. Id. This is not a broad
grant of rulemaking power like defendants suggest. Rather, by enabling the Secretary to
only “modify” program performance standards, Congress conferred modest authority. To
“modify” means to “make somewhat different; to make small changes to (something) by
way of improvement, suitability, or effectiveness . . . [t]o make more moderate or less
sweeping; to reduce in degree or extent; to limit, qualify, or moderate.” Modify, Black’s
Law Dictionary (11th ed. 2019); see also MCI Telecomm. Corp. v. Am. Tel. & Tel. Co., 512 U.S.
218, 225 (1994) (“Virtually every dictionary we are aware of says that ‘to modify’ means to
change moderately or in minor fashion”).
With the power to “modify,” the Secretary may only make moderate changes to
Head Start performance standards. Against this backdrop, the Court finds that enacting
unprecedent mask and vaccine mandates are not moderate changes to the specific standards
defendants try to leverage. But even assuming “modify” does not cabin the Secretary’s
power, the identified sources of authority cannot fairly be construed so broadly as to include
an unprecedented, nationwide requirement of a medical procedure or universal masking.
The Court addresses each of defendants’ cited provisions in turn.
First, the mask and vaccine mandates are not authorized by subsection (C), which
allows the Secretary to modify “administrative and financial management standards.”
§ 9836a(a)(1)(C). “Financial management standards” plainly do not encompass mask and
vaccine mandates—they relate to how money is handled. Defendants admit that the
mandates are not financial management standards. Tr. at 48.

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Likewise, the Secretary may not impose these mandates by purporting to modify
administrative standards. “Administrative” is not defined by the statute but generally refers
to “of or relating to administration,” and “administration” is the “performance of executive
duties: management.” Administrative, Merriam-Webster’s Collegiate Dictionary (11th ed.
2014); Administration, Merriam-Webster’s Collegiate Dictionary (11th ed. 2014). By placing
the vaccine mandate in the “Human Resources Management” section of the regulations,
defendants seem to interpret “administrative” standards to include requiring its employees
to undergo a mandatory offsite medical procedure or be fired if they are not granted an
exemption. See 86 Fed. Reg. at 68,060 (noting that the Rule adds four new provisions to
“part 1302, subpart I—Human Resources Management” in 45 C.F.R. §§ 1302.93–94). Such
a requirement would not typically be characterized as relating to executive duties or
management. If it were, there would be no limit to the scope of administrative standards.
Defendants could then impose any requirement on Head Start staff, contractors, volunteers,
and children by modifying “administrative standards.”
Rather, the scope of “administrative standards” is informed by the term to which it is
joined: “financial management standards.” § 9836a(a)(1)(C). Congress grouped the two
together—not only in the same list, but in the same subsection. See id. Statutory terms are
often known by the “company they keep.” See Lagos v. United States, 138 S. Ct. 1684, 1688–
89 (2018) (Breyer, J., writing for a unanimous Court) (citing Yates v. United States, 574 U.S.
528, 542 (2015)) (finding “both the presence of company that suggests limitation and the
absence of company that suggests breadth”). The agency concedes that the company
“administrative” keeps—“financial management”—obviously cannot authorize the Rule.
Tr. at 48. Read together, the term “financial management standards” “suggests limitation”

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on the scope of the term “administrative standards.” Id. The terms appear to contemplate
management standards like those found in 45 C.F.R. § 1302.101(a)(1)—requiring programs
to use effective “fiscal[] and human resource management structure[s]”—not mandatory
masking and vaccine requirements. Given that the masking and vaccine mandates aim to
protect children’s health, it defies logic to assert that such standards would be characterized
as administrative or financial.
Second, the plain language of subsection (D) suggests that the Secretary may not
impose the mask and vaccine mandates. Subsection (D) enables the Secretary to modify
“standards relating to the condition and location of facilities (including indoor air quality
assessment standards, where appropriate).” § 9836a(a)(1)(D). “Facility” is defined as “a
structure, such as a building or modular unit, appropriate for use in carrying out a Head
Start program and used primarily to provide Head Start services.” 45 C.F.R. § 1305.2
(2021). Subsection (D) specifies that the condition and location of facilities must “meet or
exceed State and local requirements concerning licensing for such facilities” and “be
accessible by State and local authorities for purposes of monitoring and ensuring
compliance.” § 9836a(a)(1)(D)(i) & (ii). The “condition” of facilities—as the references to
“indoor air quality assessment standards,” licensing, and accessibility make clear—relate to
physical conditions of buildings and equipment—not conditions on children’s participation
and adults’ employment or volunteer eligibility. Mandating facility standards is a far cry
from mandating a medical procedure for all staff under the threat of termination and what
participants must wear. See Texas v. Becerra, 2021 WL 5964687, at *5 (N.D. Tex. Dec. 15,
2021) (Kacsmaryk, J.) (“Mandating facility standards is drastically different from mandating
who a healthcare provider hires or fires.”).

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The Rule contains a lone sentence aimed at explaining how the mask and vaccine
mandates are “standards relating to the condition . . . of facilities.” § 9836a(a)(1)(D). “The
Secretary finds it necessary and appropriate to set health and safety standards for the
condition of Head Start facilities that ensure the reduction in transmission of the SARS–
CoV–2 and to avoid severe illness, hospitalization, and death among program participants.”
86 Fed. Reg. at 68,054. But the new Rule governs the conditions of people—not buildings.
See Tr. at 49 (defendants acknowledging that “facilities” refer to buildings).
The last subsection—“such other standards as the Secretary finds to be
appropriate”—cannot support the mask and vaccine mandates. § 9836a(a)(1)(E). Though
seemingly expansive, “such other” standards fall under the banner of “performance
standards” and must be defined in relation to subsections (A)–(D). 9 § 9836a(a)(1) (stating
that “[t]he Secretary shall modify, as necessary program performance standards”).
Generally, “performance standards” are criteria that measure the quality of Head Start
programs. See Standard, Black’s Law Dictionary (11th ed. 2019) (“A criterion for measuring
acceptability, quality, or accuracy”). Here, “quality” corresponds to Head Start programs’
ability to achieve their purpose. Under the Act, that purpose is to “promote the school
readiness of low-income children by enhancing their cognitive, social, and emotional
development” through providing a host of services—including health services to the
children and their families. 42 U.S.C. § 9831(2).

9

Plaintiffs also argue that such a broad reading of “other standards” the Secretary deems
“appropriate” would violate the nondelegation doctrine. Dkt. No. 8 at 25. “The nondelegation
doctrine bars Congress from transferring its legislative power to another branch of Government.”
Gundy v. United States, 139 S. Ct. 2116, 2121 (2019). But statutory delegations are permissible if
“Congress has supplied an intelligible principle to guide the delegee’s use of discretion.” Id. at
2123. Because the Court finds defendants’ broad reading impermissible, the Court need not
address nondelegation issues arising from the catch-all provision.

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The vaccine mandate does not measure staff and volunteers’ ability to enhance
children’s development; it determines whether they will be kept on, hired, or fired in the first
place. Likewise, requiring all children ages two to five to wear masks is not a benchmark
that measures the quality of services provided, health-related or not. Rather, it defines
whether children may receive Head Start services at all. These mandates are prerequisites to
performance, not performance standards themselves. Both set conditions for participation
and employment. They do not measure quality. Defendants’ construction of their cited
authorities is impermissible for this fundamental reason.
Furthermore, if “such other performance standards” could include mask and vaccine
mandates, there would be no genuine limiting principle to the Secretary’s authority to
regulate in the name of “health and safety standards.” As recently as August 2021, the
Supreme Court invalidated a federal agency’s attempt to pass COVID-19 restrictions, and it
did so, in part, due to the lack of any limit to the asserted authority. Alabama Ass’n of
Realtors v. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485, 2489 (2021). There, the Supreme
Court held that it was “virtually certain” that the CDC did not have authority to issue an
eviction moratorium based on the Surgeon General’s statutory authority to make and
enforce regulations to prevent the spread of communicable diseases. Id. at 2486. The
statute at issue had a catch-all provision, similar to the one in this case—“other measures, as
in his judgment may be necessary.” Id. at 2487 (quoting 42 U.S.C. § 264). But the Court
explained that “the sheer scope of the CDC’s claimed authority . . . would counsel against”
the CDC’s interpretation, because it was “hard to see what measures [it] would place
outside the CDC’s reach.” Id. at 2489.

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Although, this case, of course, deals with different statutory language, the agency’s
similar claim to expansive authority based on generalized and catch-all language
undermines its position. Here, defendants argue that the Secretary can leverage “such other
standards as the Secretary finds to be appropriate” to pass any health and safety regulation
that furthers the general purpose of the statute—keeping Head Start programs open to
promote the school readiness of children. Tr. at 51–52. This reading appears to allow the
Secretary to pass any health-related mandate that would reduce staff and volunteer
absenteeism. Even if the plain language of “program performance standards” authorized
the Rule—which it does not—adopting the remote and manipulable reading urged by the
Secretary counsels against the defendants’ interpretation. See Alabama Ass’n of Realtors, 141
S. Ct. at 2489.
b.

Other statutory provisions and existing regulations confirm
that the mask and vaccine mandates are unprecedented and
unauthorized.

Citing other provisions in the “standards” section, defendants urge a broader
construction of “performance standards.” See Dkt. No. 26 at 26–27. Congress authorized
the Secretary to issue “deficiencies” when programs fail to follow “performance standards.”
§ 9836a(e)(1)(A). The act defines a “deficiency” as “a systematic or substantial material
failure of an agency in an area of performance that the Secretary determines involves—(i) a
threat to the health, safety, or civil rights of children or staff; . . . [or] (iii) a failure to comply
with standards related to early childhood development and health services . . . .” 42 U.S.C.
§ 9832(2)(A). So, defendants argue, the Secretary can establish “standards related to early
childhood development and health services” and “the health . . . of children or staff”
because he can issue deficiencies for failures to follow such standards. Dkt. No. 26 at 26–27

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(quoting § 9832(2)(A) and citing § 9836a(e)(1)). The argument falls short for multiple
reasons.
First, there was never any doubt that the Secretary could establish certain
performance standards related to “health services.” Subsection (A) of program performance
standards specifically allows the Secretary to modify “performance standards with respect to
services required to be provided, including health.” § 9836(a)(1)(A). But the Secretary did
not rely on this subsection as his statutory authority for the mask and vaccine mandates.
Subsection (A) does not appear in the Rule even once. He instead cites subsections
(C) (“administrative and financial”), (D) (“facilities”), and (E) (“other”) of “program
performance standards.” 86 Fed. Reg. at 68,052–53 (citing § 9836(a)(1)(C)–(E)). And
defendants concede that mask and vaccine mandates are not health services. Tr. at 40.
Indeed, they are not. Head Start is not providing “health services” to children, nor
establishing related “performance standards,” by requiring universal masking and staff
vaccination. Current performance standards related to health services include examinations
and screenings for children. See 45 C.F.R. § 1302.42 (2021). These standards even include
assisting children in getting up to date on immunizations. § 1302.42(b)(1).
But these existing regulations differ from the mask and vaccine requirements in three
critical ways. One, they do not operate as conditions to participation. The provision of
health services, like screenings and immunization assistance, for children already
participating in Head Start programs promotes school readiness, but they are not required.
Mandatory vaccines and universal masking, in contrast, present barriers to entry unlike any
other “performance standard.” Two, since the first of these regulations were promulgated,
the health services offered have always required parental consent. See Program Performance

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Standards for Operation of Head Start Programs by Grantees and Delegate Agencies, 40
Fed. Reg. 27,562, 27,565 (June 30, 1975) (codified in 45 C.F.R. § 1304.3-3(a)) (requiring
“advance parent or guardian authorization” for all screenings and examinations); 45 C.F.R.
§ 1302.41 (2021) (requiring Head Start programs to “collaborate with parents as partners in
the health and well-being of their children” and “[a]t a minimum” to “[o]btain advance
authorization from the parent or other person with legal authority for all health and
developmental procedures administered through the program”); 45 C.F.R. § 1302.42(b)(ii)
(2021) (authorizing Head Start staff to assist parents with scheduling immunizations but
saying nothing about enforced masking or vaccinations). And the defendants concede that
the Rule at issue is the first time in Head Start’s history that a health procedure was
mandated as a prerequisite to participation or employment. Tr. at 47. Three, the
regulations on which defendants rely only require that immunizations be made available to
children; they say nothing regarding staff or volunteers. 45 C.F.R. § 1302.41 (2021) (“Child
health status and care”). Here, by contrast, the vaccine and mask mandates condition
employment on compliance, and this is the first-ever medical procedure required of Head
Start staff under the threat of termination. Tr. at 47. These distinctions again highlight why
the mandates are not “performance standards” in the first place.
Second, that the “deficiencies” for which the Secretary can impose sanctions
contemplate threats to “health and safety” does not widen the scope of what “performance
standards” comprises. Based on the listed “performance standards” in section 9836a(a)(1),
the Secretary has limited power to provide for the health and safety of Head Start programs.
That was never in doubt. But again, it does not authorize the mask and vaccine mandates.
For instance, Congress expressly granted the Secretary power to regulate the conditions of

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“facilities.” § 9836a(a)(1)(D). And here, the Secretary’s own explanation of his statutory
authority focused on “facilities.” 86 Fed. Reg. at 68,054. Facility conditions, such as poor
“ventilation” systems, directly impact the health and safety of children and staff. Id. at
68,054, 68,066. Thus, it is no surprise that the Secretary could issue deficiencies based on
“threat[s] [to] the health or safety” of staff and children resulting from facility conditions.
§§ 9836a(a)(1)(D) & (e)(1)(B)(i). But, as explained above, the Act says nothing about
conditioning participation and employment eligibility on health and safety requirements as
vast as the mask and vaccine mandates here.
Furthermore, that Congress mentions standards related to “health” services in
subsection (A), cuts against defendants’ claim that the catch-all provision in subsection (E)
includes any health-related standards. Reading “other standards” as broadly as defendants
suggest would render subsection (A) surplusage as it pertains to “health” related standards.
The catch-all provision cannot be read so broadly as to eclipse the meaning of subsections
(A)–(D). The Court “must give effect to every word that Congress used in the statute.”
Lowe v. SEC, 472 U.S. 181, 207 n.53 (1985).
c.

Vaccination requirements for Head Start staff and volunteers
are state government—not federal agency—matters.

Having already addressed the existing regulations governing children, the Court
turns to the existing regulations governing Head Start staff and volunteers. To the extent
the regulations shed light on the scope of Secretary’s authority under the statute, they do not
authorize this Rule’s mandates. Rather, they imply that periodically screening or testing
workers may be permissible when done in “accordance with state, tribal, and local
requirements.” See 45 C.F.R. §§ 1302.93–94 (2021) (requiring staff and volunteers to test for

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communicable diseases “in accordance with state, tribal, and local” laws and
requirements). 10 These provisions suggest two ideas, neither of which help defendants.
First, testing employees for communicable diseases may, in some circumstances, be
permissible. But this is not a periodic testing rule. This is a vaccine mandate. Nothing in
the regulations contemplate that the federal government can require staff and volunteers to
be periodically immunized.
Second, testing only occurs when conducted consistent with “state, tribal, and local”
laws and requirements. Id. This confirms what the Supreme Court has recognized for over
a century. Public health and safety regulation belongs, in the first instance, to the States.
Jacobson v. Massachusetts, 197 U.S. 11, 25, 38 (1905) (recognizing that the “safety and the
health of the people of” states are for States to “guard and protect” through their general
“police power[s]”). Moreover, defendants’ argument that states can require employee
vaccination does not support their argument that a federal agency can. Dkt. No. 26 at 36–
37 (“Students and educators have long been subject to . . . state vaccination requirements.”)
(emphasis added). Rather, it supports finding that the Secretary cannot compel vaccination
here.
In this respect, defendants cause their own undoing. They repeatedly affirm the
notion that “vaccine requirements have existed for centuries as a commonplace feature of

10

Defendants also rely on regulations that require staff to clean play areas and wash their hands after
restroom use or changing diapers. Dkt. No. 26 at 35 (citing 45 C.F.R. § 1302.47(b)(6)(i) (2021)
(hand hygiene); 45 C.F.R. § 1302.47(b)(2)(i) (cleaning and disinfecting play areas and equipment)).
Such basic hygiene practices do not come close to showing that the Head Start Act authorizes
universal masking requirements for 2-year-old children or mandatory vaccination for staff, which
results in termination if they choose not to comply. And the staff-training provisions defendants
cite also refer to state and local requirements, indicating that federal rules do not solely govern.
Dkt. No. 26 at 35 (citing 45 C.F.R. § 1302.47(b)(4)).

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American life, particularly in the education context.” Dkt. No. 26 at 35 (citing Klaassen v.
Trs. of Ind. Univ., 7 F.4th 592, 593 (7th Cir. 2021) (upholding a state university’s vaccination
requirement)). Correct. And for “centuries,” states—not federal agencies—have compelled
vaccine requirements in the education context. See, e.g., 25 Tex. Admin. Code § 97.63(2)(A)
(requiring that “[c]hildren enrolled in child-care facilities, pre-kindergarten, or early
childhood programs” be immunized against a host of diseases); Ark. Code Ann. § 6-18-702
(West) (outlining immunization requirements for school children).
The vaccine mandate at issue here comes from a federal agency, not a state. But
Congress must use “exceedingly clear language if it wishes to significantly alter the balance
between federal and state power.” U.S. Forest Serv. v. Cowpasture River Pres. Ass’n, 140 S. Ct.
1837, 1850 (2020) (citing Gregory v. Ashcroft, 501 U.S. 452, 460 (1991)). Congress’s failure to
use “exceedingly clear language” in any part of the statute further supports what the plain
language of “performance standards” indicates: defendants do not have authority to issue
the mask and vaccine mandates at issue here.
This conclusion is especially true if the “major questions doctrine” applied. The
Supreme Court recently reaffirmed that it “expect[s] Congress to speak clearly when
authorizing an agency to exercise powers of ‘vast economic and political significance.’”
Alabama Association, 141 S. Ct. at 2489 (quoting Util. Air Regul. Grp. v. EPA, 573 U.S. 302,
324 (2014)).
Several factors favor applying this additional level of scrutiny. The Office of
Management and Budget declared that the Rule is a “major rule” because it will “have an
annual effect on the economy of $100 million or more.” 86 Fed. Reg. at 68,063. In fact,
ACF awards approximately “$10 billion in grants to Head Start programs.” Id. at 68,100.

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And the Rule will regulate 273,000 staff, a share of the one million volunteers who interact
with children in-person, and a share of the 864,000 children participating in-person. Id. at
68,068–69. Plaintiffs rightly argue that these factors highlight the great economic
significance of the Rule. See Dkt. No. 8 at 28. In addition, they argue that the federal
government’s power to require citizens to get vaccinated or wear masks is a question of
great political significance. See id. at 28, 36.
But the Sixth and Eleventh Circuits recently held that the doctrine did not apply to
rules with much larger economic effects and arguably equivalent political significance
because the rules at issue were not “an enormous and transformative expansion in [the
agencies’] regulatory authority.” See In re MCP No. 165, --- F.4th ---, 2021 WL 5989357, at
*7 (6th Cir. Dec. 17, 2021) (order dissolving the Fifth Circuit’s stay of the OSHA ETS
mandate) (quoting Utility Air, 573 U.S. at 324); Florida v. Dep’t of Health & Hum. Servs., 19
F.4th 1271, 1287 (11th Cir. 2021) (order denying injunction pending appeal of the CMS
mandate) (quoting Utility Air, 573 U.S. at 324). Delineating an “enormous and
transformative” unlawful expansion of regulatory authority from a regular-sized unlawful
expansion of regulatory authority is difficult. But the Court in this case need not resolve
that question nor the more general issue of the major-questions doctrine. Under traditional
principles of statutory interpretation, and even without the major-questions doctrine’s more
exacting standard, the defendants’ construction is impermissible. 11

11

If the doctrine applied, plaintiffs would prevail even more easily because Congress has not spoken
clearly in authorizing HHS to impose the expansive and unprecedented mandates on Head Start
programs.

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ii.

Page 25 of 56 PageID 24577

Proper Rulemaking Procedures
a.

There is a substantial likelihood that the Secretary did not
follow the procedures required to modify performance
standards under the Head Start Act.

Even if the Head Start Act allowed the Secretary to impose mask and vaccine
mandates under the guise of modifying “performance standards”—which it does not—the
Rule cannot stand for another fundamental reason. Under the APA, the Court shall “hold
unlawful and set aside agency action” that is “not in accordance with law” or “in excess of
statutory . . . limitations.” 5 U.S.C. § 706(1)(A), (C). Here, the statute requires the
Secretary to comply with several requirements prior to modifying “any” performance
standards. 42 U.S.C. § 9836a(a)(2)(A).
Under the statute, the Secretary must:
[C]onsult with experts in the fields of child development, early childhood
education, child health care, family services (including linguistically and
culturally appropriate services to non-English speaking children and their
families), administration, and financial management, and with persons with
experience in the operation of Head Start programs.
Id. “Here, the Secretary consulted with experts in child health, including pediatricians, a
pediatric infectious disease specialist, and the recommendations of the CDC and FDA.” 86
Fed. Reg. at 68,054.
The Secretary failed, however, to consult with many of the required stakeholders.
Notable absentees from his list include experts in the fields of (1) “early childhood
education,” (2) “family services (including linguistically and culturally appropriate services
to non-English speaking children and their families),” and (3) “administration[] and
financial management.” § 9836a(a)(2)(A). The failure to consult with “persons with
experience in the operation of Head Start programs” is even more striking. Id.

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And defendants do not argue that the Secretary actually consulted with these
necessary stakeholders. They only repeat the general assertion that the Secretary “included
relevant considerations” under Section 9836a(a)(2) when issuing the Rule. Dkt. No. 26 at 57
(quoting 86 Fed. Reg. at 68,053–54) (emphasis added). But the Secretary went out of his
way to list in the Rule the experts with whom he consulted and, in doing so, he omitted
several required by the statute. The inclusion of those listed implies the exclusion of those
not. Cf. Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003) (finding that the expression of
one thing implies the exclusion of others “when the items expressed are members of an
‘associated group or series’”) (quoting United States v. Vonn, 535 U.S. 55, 65 (2002)).
These requirements exist for the Secretary’s and the public’s benefit. They are not
optional. They are mandatory under the statute. Therefore, the plaintiffs have shown a
substantial likelihood that the Secretary did not follow the procedures required to modify
performance standards.
b.

There is a substantial likelihood that the Secretary did not
have good cause to issue the Rule without notice and
comment.

There is a substantial likelihood that the Rule must be set aside for another reason:
HHS did not have “good cause” to skip the notice-and-comment procedures required by the
APA when it promulgated the Rule. Courts must set aside agency action undertaken
“without observance of procedure required by law.” 5 U.S.C. § 706(2)(D). Under the APA,
an agency typically must first publish notice of a proposed rule and give the public
opportunity to comment before adopting a final rule. 5 U.S.C. § 553(b), (c). The agency
also must publish such rules at least thirty days before its effective date. § 553(d). These
procedures are “designed to assure due deliberation.” Smiley v. Citibank (S.D.), N.A., 517

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U.S. 735, 741 (1996) (citing 5 U.S.C. § 553 and Thompson v. Clark, 741 F.2d 401, 409 (D.C.
Cir. 1984)). But, on rare occasions, “both of these requirements may be bypassed if ‘good
cause’ exists.” United States v. Johnson, 632 F.3d 912, 927 (5th Cir. 2011) (quoting 5 U.S.C.
§ 553(b)(3)(B)).
Notice-and-comment procedures do not apply “when the agency for good cause”
finds those procedures are “impracticable, unnecessary, or contrary to the public interest.”
5 U.S.C. § 553(b)(3)(B). Typically, the government’s “burden to show that good cause
exists is a heavy one.” United States v. Cain, 583 F.3d 408, 420 (6th Cir. 2009). Indeed, the
exception is to be “narrowly construed and only reluctantly countenanced.” N.J., Dep’t of
Env’t Prot. v. EPA, 626 F.2d 1038, 1045 (D.C. Cir. 1980). Nor can it provide agencies with
an “‘escape clause’ from the requirements Congress prescribed.” Johnson, 632 F.3d at 928
(quoting United States v. Garner, 767 F.2d 104, 120 (5th Cir. 1985)). “Its use ‘should be
limited to emergency situations.’” Util. Solid Waste Activities Grp. v. EPA, 236 F.3d 749, 754
(D.C. Cir. 2001) (quoting Am. Fed’n of Gov’t Emps. v. Block, 655 F.2d 1153, 1156 (D.C. Cir.
1981)). To determine whether “good cause” exists, the Court must “rely only on the ‘basis
articulated by the agency itself’ at the time of the rulemaking.” Johnson, 632 F.3d at 928
(quoting Garner, 767 F.2d at 116–17).
Defendants first argue that the Court should not “narrowly construe” the good cause
exception because HHS voluntarily adopted notice-and-comment procedures; Congress did
not require it. Dkt. No. 26 at 54. The APA specifically exempts matters relating to
“grants,” and Head Start is a federal grant program. 5 U.S.C. § 553(a)(2); see, e.g., 42 U.S.C.
§ 9835 (allotment of funds). But, in 1971, HHS adopted a policy statement requiring it to
follow notice-and-comment procedures. Public Participation in Rule Making, 36 Fed. Reg.

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2,532 (Jan. 28, 1971). While defendants do not contest the binding nature of the policy
statement, they argue that the Congressional policy to construe the good cause exception
narrowly does not apply because Congress itself exempted HHS from APA procedures in
the grant program context. Dkt. No. 26 at 54 (quoting Alcaraz v. Block, 746 F.2d 593, 612
(9th Cir. 1984) (noting that agencies “should have more latitude in determining when to
invoke ‘good cause’ when notice and comment requirements are self-imposed” so the
exception should not be construed “extremely narrowly”)).
Construed “extremely narrowly” or not, plaintiffs have established a substantial
likelihood that the Secretary did not have “good cause” to waive the APA procedures. 12
Defendants argue that “good cause” existed to skip notice and comment, thereby delaying
the effective date of the Rule, because it would be “impracticable and contrary to the public
interest.” 86 Fed. Reg. at 68,059. The Secretary cites several concerning factors, including
“failure to achieve sufficiently high levels of vaccination based on voluntary efforts and
patchwork requirements, potential harm to children from unvaccinated staff, continuing
strain on the health care system, and known efficacy and safety of available vaccines.” Id.

12

Fifth Circuit “courts generally read exceptions from notice and comment narrowly.” Baylor Univ.
Med. Ctr. v. Heckler, 758 F.2d 1052, 1058 (5th Cir. 1985) (citations omitted). Heckler involved an
HHS rule for Medicare allowances to certain providers. Id. at 1054–56. The rule was promulgated
before the HHS’s 1971 waiver of 5 U.S.C. § 553(a)(2) exemptions but before Congress prescribed
Medicare-specific notice-and-comment procedures. Id. at 1059 n.11; 42 U.S.C. § 1395hh(b)(1)
(requiring 60 days’ notice and comment). Therefore, the Heckler court ultimately concluded that
the 553(a)(2) “benefits” exemption applied. Id. at 1061. However, the Fifth Circuit stated a
general principle that all exceptions from notice and comment, including 553(b)(3)(B)’s “good
cause” exception, will be construed “narrowly” even when faced with HHS’s voluntary 1971
waiver of 5 U.S.C. § 553(a)(2) exemptions. Id. at 1058. Given this, it is unclear whether the Fifth
Circuit will choose to follow the position of the Ninth Circuit in Alcaraz by extending more latitude
in construing “good cause” where the agency voluntarily waived 553(a)(2) exemptions. 746 F.2d
593. Also, at the time the agency issued the Rule, it did not claim to be exempt from notice and
comment under 5 U.S.C. § 553(a)(2). Rather, it expressly attempted to justify why it had “good
cause” under the APA. 86 Fed. Reg. at 68,058–59.

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Specifically, delaying the vaccine mandate “would endanger the health and safety of staff,
children, and families” as programs prepared to return to fully in-person services. Id. The
Court does not question the authenticity of these concerns. But the only issue for the Court
is whether HHS can show that notice and comment was “impracticable, unnecessary, or
contrary to the public interest.” 5 U.S.C. § 553(b)(3)(B).
As a threshold observation, the Secretary’s specific explanation is limited to the
vaccine mandate, which requires compliance by January 31, 2022—62 days after the
Secretary published the Rule. The mask mandate—which required instantaneous
compliance on November 30, 2021—is not mentioned. In the “Waiver of Proposed
Rulemaking” section, the Secretary never explains why following notice-and-comment
procedures for the mask mandate was impracticable or contrary to the public interest. See
86 Fed. Reg. 68,058–59 (Section III.C “Waiver of Proposed Rulemaking”). Because the
Court must “rely only on the ‘basis articulated by the agency itself’ at the time of
rulemaking,” this omission favors finding that the Secretary likely did not have good cause
to exclude public participation prior to issuing the Rule. Johnson, 632 F.3d at 928 (quoting
Garner, 767 F.2d at 116–17).
Second, the Secretary gave staff and volunteers 62 days to get vaccinated after the
Rule’s effective date—more than enough time to receive the vaccine. This amount of time
seems reasonable. Some might say practicable. So too, then, would notice and comment
have been. Notice and comment would not have forced HHS to push back the vaccinationcompliance date. Even if public participation did not affect the substance of the final rule,
HHS could have received comment and not sacrificed even one day in addressing the real
concerns it outlines.

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Plaintiffs argue that notice and comment were not impracticable and contrary to the
public interest because defendants “waited 82 days from the announcement of the rule on
September 9, 2021, until publishing the rule on November 30, 2021.” Dkt. No. 8 at 45.
Therefore, defendants “waited longer to publish the rule without comment than if it had
simply noticed the rule and allowed comment.” Id. Defendants respond that during this
period, “the Secretary completed a fifty-page rule, with an analysis of over 144 cited
sources” thereby demonstrating “appropriate dispatch in the face of crisis.” Dkt. No. 26 at
56.
The Court recognizes that “reasoned policy determination[s]” take time and do not
necessarily “undermine the state of emergency.” See In re MCP, 2021 WL 5989357, at *8–9
(citing 29 U.S.C. § 655(c)) (assessing “emergency” not under the APA’s “good cause”
standard, but under the Occupational Safety and Health Act’s “emergency temporary
standard”); see also Florida, 19 F.4th 1271 (holding that the district court did not abuse its
discretion in finding that the Secretary of HHS set forth a sufficient basis of good cause for
waiving notice and comment). But the Head Start Rule, substantially shorter and less
complex, was issued 25 days after the OSHA vaccine-or-test rule and the CMS vaccine
mandate were issued. See COVID–19 Vaccination and Testing; Emergency Temporary
Standard, 86 Fed. Reg. 61,402 (Nov. 5, 2021) (154-page OSHA ETS mandate); Medicare
and Medicaid Programs; Omnibus COVID–19 Health Care Staff Vaccination, 86 Fed. Reg.
61,555 (Nov. 5, 2021) (73-page CMS rule with an analysis of over 200 cited sources). The
Court does not expect agencies to issue “emergency” rules in mere days, or even a few
weeks, after the President announces his intent to impose new rules. But this 82-day
timeline, when paired with the 62-day vaccination-compliance period, disfavors finding this

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degree of federal involvement in pre-K programs to be an emergency that rendered notice
and comment “impracticable.”
And defendants’ data arguably casts further doubt on the emergency nature of their
concerns in this specific context. The Secretary found that “uptake of vaccination among
Head Start staff has not been as robust as hoped for.” 86 Fed. Reg. at 68,054. In
defendants’ cited survey, however, vaccination rates among childcare providers
“significantly exceeded [rates among] the general population.” Id. at 68,078. Defendants
estimate that Head Start staff are 12% more likely to be vaccinated. Id. at 68,069. 13
In light of the vaccine-compliance period, defendants’ lengthy delay, and the
relatively high vaccination rates of their instructors, the Court finds that notice and
comment was not impracticable. See Mid-Tex Elec. Coop., Inc. v. FERC, 822 F.2d 1123, 1132
(D.C. Cir. 1987) (recognizing that “the ‘good cause’ inquiry is inevitably fact- or contextdependent”).
Rather than working against the public interest, notice and comment would have
served the public interest, by ensuring “due deliberation” with the important stakeholders.
Smiley, 517 U.S. at 741 (citing 5 U.S.C. § 553 and Thompson, 741 F.2d at 409). “The public
interest prong of the good cause exception is met only in the rare circumstance when

13

Plaintiffs’ declarations suggest the same, but defendants object to the Court’s consideration of
them outside of the irreparable-harm and public interest analyses. Dkt. No. 39; Tr. at 6. Because
the Court can resolve the notice-and-comment question without the declarations, it will not factor
that evidence into its analysis, findings, and conclusion. In the interest of completeness, however,
the Court will summarize the evidence here. According to the superintendent, LISD serves 540
pre-K students receiving Head Start grants, and it employs over 150 Head Start staff. Dkt. No. 394 ¶ 2 (Affidavit of LISD Superintendent, Dr. Kathy Rollo). In an anonymous survey conducted
before the school year in August, 84% of LISD staff reported receiving at least one vaccine dose.
Id. ¶ 6. Four months later, vaccination rates could be even higher. This school year, there have
been zero COVID-19 cases among pre-K staff, even though most do not wear masks. Id. ¶¶ 5, 9.

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ordinary procedures—generally presumed to serve the public interest—would in fact harm
that interest.” Mack Trucks, Inc. v. EPA, 682 F.3d 87, 95 (D.C. Cir. 2012). Notice and
comment would have involved important stakeholders, many of whom were excluded from
the rulemaking process in violation of the Head Start Act itself. 42 U.S.C. § 9836a(a)(2)(A);
see supra Part 3.A.ii.a (outlining the Secretary’s failure to consult with experts in the fields of
early childhood education, family services, administration and financial management, and
persons with experience operating Head Start programs). The Secretary’s decision silenced
Head Start teachers, volunteers, and parents—the people who likely understand well the
educational, linguistic, and social-development costs and benefits of masking toddlers and
teachers in classrooms.
Furthermore, public feedback seems particularly important here given the diversity of
local health conditions across the country and the wide reach of the mandate. 86 Fed. Reg.
68,058; see American Federation, 655 F.2d at 1156 (“The more expansive the regulatory
reach . . . the greater the necessity for public comment.”). Rather than guessing that it
would be burdensome for large agencies to administer different policies for areas with
disparate COVID-19 transmission rates, HHS could have solicited their input through
notice and comment.
To be sure, HHS is accepting comments until December 30, 2021. 86 Fed. Reg.
68,052. But “accepting post-promulgation comments,” after the Rule’s effective date, does
not “excuse compliance with APA procedures.” Johnson, 632 F.3d at 929. This too is not
an escape hatch. “Permitting the submission of views after the effective date is no substitute
for the right of interested persons to make their views known to the agency in time to
influence the rule making process in a meaningful way.” U.S. Steel Corp. v. EPA, 595 F.2d

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207, 214 (5th Cir. 1979) (quoting City of New York v. Diamond, 379 F. Supp. 503, 517
(S.D.N.Y. 1974)). To allow otherwise, would make the provisions of Section 553 “virtually
unenforceable.” Id. at 215.
“The essential purpose of according § 553 notice and comment opportunities is to
reintroduce public participation and fairness to affected parties after governmental authority
has been delegated to unrepresentative agencies.” Batterton v. Marshall, 648 F.2d 694, 703
(D.C. Cir. 1980). Here, the Secretary deprived the public and important stakeholders of this
opportunity. Whether the Court construes the good cause exception “extremely narrowly”
or not, HHS likely did not have good cause to forgo the notice-and-comment period.
iii.

Arbitrary and Capricious

The Court finds that there is a substantial likelihood that the Rule is arbitrary and
capricious because it is unreasonably overbroad without a reasonable explanation. It
imposes a one-size-fits-all approach with no end date, failing to establish a “rational
connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n of U.S.,
Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines v.
United States, 371 U.S. 156, 168 (1962)). The lack of a reasoned explanation is especially
concerning given that the Rule constitutes a drastic change from Head Start’s tradition of
local flexibility, CDC-reported success in navigating the pandemic through flexibility, and
the local programs’ reliance interest on that flexibility. See Dkt. No. 39-19 at 1–2.
A court must “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.” 5 U.S.C. § 706(2)(A). The Supreme Court recently rearticulated what this
standard requires:

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The APA’s arbitrary-and-capricious standard requires that agency action be
reasonable and reasonably explained. Judicial review under that standard is
deferential, and a court may not substitute its own policy judgment for that of
the agency. A court simply ensures that the agency has acted within a zone of
reasonableness and, in particular, has reasonably considered the relevant issues
and reasonably explained the decision.
FCC v. Prometheus Radio Project, 141 S. Ct. 1150, 1158 (2021) (citing FCC v. Fox Television
Stations, Inc., 556 U.S. 502, 513–14 (2009) and State Farm, 463 U.S. at 43). In applying this
standard, the Court is limited to “the basis articulated by the agency itself.” State Farm, 463
U.S. at 50. Accordingly, this Court’s review is deferential and limited. But “it is by no
means a rubber stamp.” Garner, 767 F.2d at 116.
Plaintiffs argue that the Head Start Rule is arbitrary and capricious on more than a
dozen grounds. Dkt. No. 8 at 34–43. Only a handful are particularly salient at this
preliminary stage.
First, the Secretary made no distinctions in the Rule based on size, location, or
transmission rates. The Head Start Rule’s requirements are universal. Contra In re MCP,
2021 WL 5989357, at *2 (upholding OSHA standard applying only to employers of a
certain size); Alabama Association, 141 S. Ct. at 2490 (vacating stay of CDC eviction
moratorium, which applied only in counties with high transmission rates). The Secretary
acknowledged regional differences in COVID-19 transmission 14 but did not “reasonably
explain” his failure to accommodate such differences. Prometheus Radio Project, 141 S. Ct. at
1158. The Secretary found that “cases are trending downward” in some states. 86 Fed.
Reg. at 68,058. But “there are emerging indications of potential increase in others—
particularly northern states where the weather has begun to turn colder.” Id.

14

See 86 Fed. Reg. at 68,058.

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An agency is “not required to identify the optimal threshold” of rule distinctions
based on size, location, or transmission rates “with pinpoint precision.” In re MCP, 2021
WL 5989357, at *15. And “[c]ourts are ‘generally unwilling to review line-drawing
performed by the [agency] unless a petitioner can demonstrate that lines drawn . . . are
patently unreasonable, having no relationship to the underlying regulatory problem.” Id.
(alteration in original) (quoting Cassell v. FCC, 154 F.3d 478, 485 (D.C. Cir. 1998)). But the
Rule does not account for any of the previously mentioned differences. Without reasonably
considering the relevant issues or reasonably explaining the decision, it imposed a novel,
universal approach.
Contrary to this approach, Head Start has a documented history of success from
flexible practices depending on local needs. Dkt. Nos. 5-9 at 2-3; 27 at 4 (OHS May 2021
guidance listed in the administrative record); 29-9 (CDC report included in the
administrative record). In its May 2021 guidance, the agency recognized that “[t]o date,
OHS provided needed flexibilities and guidance that allowed programs to adapt services
based on the changing health conditions in their communities.” Id. at 2 (emphasis added). As a
result, some Head Start programs offered virtual and remote services, but “[m]any programs
continued to provide in-person services for children and families throughout the COVID-19
pandemic.” Id. The guidance instructed its in-person programs “to continue serving
children in person, as local health conditions allow” and encouraged programs to “move to inperson services, as local health conditions allow.” Id. at 2 (emphasis added). During the
pandemic, local programs decided to close, operate remotely or hybrid, or offer fully inperson services, depending on their circumstances. 86 Fed. Reg. at 68,058. In September
2021, 73% of centers were open for in-person services, 14% operated in a hybrid model, and

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4% were virtual. Id. Only 2% were entirely closed due to COVID-19. Id. This history
makes clear that defendants recognized the importance of tailoring COVID-19 policy for
months and that local centers were able to navigate the pandemic successfully.
There is no doubt that Head Start’s traditional local-flexibility approach worked and
that the data was before the agency when it nevertheless imposed the one-size-fits-all Rule.
A December 2020 report from the CDC studied the implementation of mitigation strategies
in early childhood education settings. Dkt. No. 29-9 (administrative record). The CDC
reported that, while “[m]ost states required all schools (K-12) to close or transition to virtual
learning,” the Office of Head Start “gave its local programs that remained open the
flexibility to use CARES Act funds to implement CDC-recommended guidance.” Id. at 1.
The result? “Head Start programs successfully implemented CDC-recommended mitigation
strategies and supported other practices that helped to prevent SARS-CoV-2 transmission
among children and staff members.” Id. The CDC stressed that the flexibility provided to
local Head Start programs was key to the success: “Since the COVID-19 pandemic started,
Head Start and Early Head Start programs successfully implemented CDC-recommended
mitigation strategies and applied other innovative approaches to limit SARS-CoV-2
transmission among children, teachers, and other staff members by allowing maximum
program flexibility and allocating financial and human resources.” Id. at 3 (emphasis added).
The report concludes that “[c]hild care settings should implement concurrent preventive
measures and adjust these strategies based on community transmission data.” Id. at 4.
Despite this tradition and success, defendants attempt to justify their new one-sizefits-all approach by stating that it would be “burdensome” for grant recipients that cover
large geographic areas to issue different guidance to programs in different locations. 86 Fed.

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Reg. at 68,066. But such a conclusory allegation constitutes willful ignorance of the facts
and issues in a rushed attempt to achieve its goals. Head Start agencies covered large areas
and adjusted as necessary prior to the Rule, and defendants cite no evidence indicating that
it was burdensome to do so then or now.15 To the contrary, ACF admits that it has “relied
on the importance of local health conditions in issuing guidance to Head Start programs”
before and acknowledges the diversity in transmission rates. Id; see also id. at 68,058.
Moreover, the Rule ignores CDC guidance “that localities should monitor community
transmission in making decisions” and the CDC’s report that Head Start had successfully
navigated the pandemic through “maximum program flexibility.” Id. at 68,066; Dkt. No.
29-9 at 3.
Rejecting or ignoring this guidance and data—and failing to articulate why local
conditions are no longer vital policy tools—ACF simply states that it is prioritizing an easyto-follow “clear and transparent policy” and that “children benefit from routine and
predictability.” Id. Again, ACF cites no evidence supporting these conclusory statements in
relation to the Rule and does not provide any reasonable, meaningful explanation of the
Rule. Instead, it implements a one-size-fits-all approach without articulating “a satisfactory
explanation for its action including a ‘rational connection between the facts found and the
choice made.’” State Farm, 463 U.S. at 43 (quoting Burlington, 371 U.S. at 168). Therefore,
the Court does “not defer to the agency’s conclusory or unsupported suppositions.” United
Techs. Corp. v. U.S. Dep’t of Def., 601 F.3d 557, 562–63 (D.C. Cir. 2010) (quoting McDonnell
Douglas Corp. v. U.S. Dep’t of the Air Force, 375 F.3d 1182, 1187 (D.C. Cir. 2004)).

15

Because defendants precluded pre-promulgation comment, they appear to be guessing at the exact
“burden[]” this will cause local agencies. Id. at 68,066.

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The validity of this conclusion is especially apparent in light of the Rule’s drastic
change from past practice. Although an agency need not always provide a detailed
explanation for a new policy, “[s]ometimes it must.” Fox Television Stations, Inc., 556 U.S. at
515. Supreme Court precedent makes clear that when a new policy “rests upon factual
findings that contradict those which underlay its prior policy,” or when an agency’s “prior
policy has engendered serious reliance interests,” it is “arbitrary or capricious to ignore such
matters.” Id. As explained above, the Rule rests on a one-size-fits-all finding that
contradicts its prior approach, and the agency’s prior flexibility engendered serious reliance
interests. Thus, “further justification [was] demanded” but not provided, likely rendering
the Rule arbitrary and capricious.
Plaintiffs also argue that ACF’s failure to establish an end date for the masking and
testing requirements was arbitrary and capricious. In the Rule, ACF offered no explanation
for its choice. See 86 Fed. Reg. at 68,066. Rather, it only “invites comment” on whether to
establish a “finite end date.” Id. Defendants argue that ACF decided to not include an end
date because “children benefit from routine and predictability.” Dkt. No. 26 at 31 (quoting
86 Fed. Reg. at 68,066). Under a fair reading of the Rule, ACF likely did not offer that
reason to explain its choice. And even if it did, it would not support omitting an end date.
ACF asserts that “children benefit from routine and predictability” not to explain its
choice to omit an end date, but to partially explain its decision to impose universal
mandates without regard to regional transmission rates. Dkt. No. 26 at 44. And choosing
not to tie “predictability” to the indeterminate duration of the Rule makes sense. If children
benefit from predictability, then imposing an end would serve that purpose. They would be
able to predict when they needed to wear a mask and when they did not. By failing to

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include an end date, ACF made the Rule’s duration entirely unpredictable. Therefore, to
the extent ACF actually included an explanation for this choice, it was not “reasonable.”
See generally Prometheus Radio Project, 141 S. Ct. at 1158. Though this is not a stand-alone
basis to invalidate the Rule, when viewed together with the Rule’s overbreadth and change
in policy, it takes the Secretary’s decision outside “the zone of reasonableness.” Prometheus
Radio Project, 141 S. Ct. at 1158.
B.

Substantial Threat of Irreparable Harm

The defendants argue that the plaintiffs cannot show the threat of irreparable harm
necessary to entitle them to preliminary injunctive relief. Dkt. No. 26 at 65. See Winter, 555
U.S. at 20. “To show irreparable injury if threatened action is not enjoined, it is not
necessary to demonstrate that harm is inevitable and irreparable.” Humana, Inc. v. Jacobson,
804 F.2d 1390, 1394 (5th Cir. 1986). Instead, plaintiffs need only show that they are “likely
to suffer irreparable harm in the absence of preliminary relief.” Benisek v. Lamone, 138 S. Ct.
1942, 1944 (2018).
The defendants assert that plaintiffs will not suffer irreparable harm absent an
injunction, and due to the lack of injury, they argue in passing that Texas lacks standing.
Dkt. No. 26 at 66–68 (“To the extent Texas seeks to litigate on its citizens’ behalf, it cannot
do so.”). Regardless of whether that argument has been adequately briefed, the Court has
an ongoing independent obligation to ensure that the plaintiffs indeed have standing to
invoke this Court’s jurisdiction. E.g., Collins v. Yellen, 141 S. Ct. 1761, 1778–79 (2021); Moler
v. Wells, 18 F.4th 162, 166 (2021). And because the standing analysis and the irreparable-

injury analysis—an issue both sides fully address—are largely overlapping, the Court will

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consider together the questions of whether the plaintiffs have standing and whether they risk
irreparable injury absent the preliminary injunctive relief they seek.
Federal courts have jurisdiction over cases or controversies only, and standing is “an
essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan
v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (citing Allen v. Wright, 468 U.S. 737, 751 (1984)).
“[S]tanding is not dispensed in gross; rather, plaintiffs must demonstrate standing for each
claim that they press and for each form of relief that they seek (for example, injunctive relief
and damages).” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2208 (2021). To demonstrate
that federal court is the proper forum for resolving a dispute, the party invoking the federal
forum—here, the plaintiffs—must demonstrate that the plaintiff suffers an “injury in fact”
that is both “concrete and particularized” and “actual or imminent.” Lujan, 504 U.S. at
560. That injury must be “fairly . . . trace[able] to the challenged action of the defendant.”
Id. (alterations in original) (quoting Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 41–42
(1976)). And it must be “likely”—not speculative or certain—that the injury will be
“redressed by a favorable decision.” Id. at 561. Necessarily then, a plaintiff who lacks
standing cannot demonstrate an irreparable injury from the Court’s failure to enjoin the
challenged conduct.
The Court takes each aspect of standing in turn.
i.

Injury

An injury is “an invasion of a legally protected interest” that is both “concrete and
particularized” and “actual or imminent, not conjectural or hypothetical.” Spokeo, Inc. v.
Robins, 578 U.S. 330, 339 (2016) (quoting Lujan, 504 U.S. at 560). A concrete injury is one
that must “actually exist”—it must be “real, and not abstract.” Id. at 340. Meanwhile, the

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particularity aspect requires that the plaintiff be affected in a “personal and individual way”.
Id. at 339 (quoting Lujan, 504 U.S. at 560 n.1). “Tangible” and “concrete” are not
synonyms; the former is broader than the latter, encompassing intangible injuries within
“injuries in fact.” See TransUnion 141 S. Ct. at 2204.
Similarly, “under Article III, an injury in law is not an injury in fact. Only those
plaintiffs who have been concretely harmed by a defendant’s statutory violation may sue that
private defendant over that violation in federal court.” Id. at 2205. So a plaintiff who “is
merely seeking to ensure a defendant’s ‘compliance with regulatory law’” does not have
“grounds for Article III standing” absent some “physical, monetary, or cognizable
intangible harm traditionally recognized as providing a basis for a lawsuit in American
Courts.” Id. at 2206 (quoting Spokeo, 578 U.S. at 345). An increased regulatory burden
typically satisfies the injury-in-fact-requirement. See Ass’n of Am. R.R.s v. Dep’t of Transp., 38
F.3d 582, 586 (D.C. Cir. 1994); cf. Georgia v. Biden, No. 1:21-CV-163, 2021 WL 5779939, *4,
*11 (S.D. Ga. Dec. 7, 2021) (citing, as an irreparable injury, the administrative burden of
merging human-resources and medical data necessitated by an obligation to collect
vaccination statuses of covered employees).
Because states are not normal litigants, see Massachusetts v. EPA, 549 U.S. 497, 518
(2007), the Court analyzes LISD’s and Texas’s injuries separately.
a.

LISD

First, LISD argues that it faces two forms of irreparable harm: various financial and
operational harms and the risk of violating state law. Dkt. No. 8 at 57–58. Because the
Court concludes that the first is sufficient to justify a preliminary injunction to protect LISD,
it declines to address the second.

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LISD argues that it will lose staff and students if the Rule goes into effect. Id. It
supports that argument with declarations from school administrators, parents, and staff. See
id. at 58 nn. 55–60. Should LISD comply with the Rule, it will lose staff and students,
impacting its ability to provide services to Head Start students and their families. Id. at 58;
Dkt. Nos. 8-7 (declaration of an LISD pre-K student’s mother attesting that she will
unenroll her child); 8-8 (declaration of an LISD employee who attests that he will leave his
employment); 8-9 (declaration of LISD Head Start director disclosing that some staff remain
unvaccinated). Moreover, those losses will come at a time when the District has struggled
to fill preexisting staff vacancies—creating new vacancies will exacerbate staff shortages and
further strain resources to the detriment of students. Dkt. Nos. 8 at 58; 8-9 (noting LISD
“has already been challenged to secure the current staffing needs”). And LISD stands to
lose other funds as well: at least one parent of a non-Head Start student has indicated that
her child will be withdrawn from LISD’s pre-K program if instructors—who teach mixed
classrooms of Head Start and non-Head Start students—are required to wear masks,
depriving the District of the tuition dollars paid by that child’s parents. Dkt. No. 8-7.
Losing up to 36 unvaccinated staff 16 would also jeopardize LISD’s ability to comply with
the staff-student ratios Head Start requires, so even if it chooses to comply with the Rule, it
may still lose its Head Start funding.
All of this demonstrates a real and likely injury to LISD’s early education
programming should it comply with the Rule. And, as a general rule, “a regulation later
held invalid almost always produces the irreparable harm of nonrecoverable compliance

16

Of the 152 staff surveyed, 136 responded; 20 responded that they were not vaccinated. Dkt. No. 89 at 3. Assuming, for worst-case-scenario purposes, that all of those who failed to respond were
unvaccinated yields 36 unvaccinated Head Start staff members.

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costs,” Texas v. EPA, 829 F.3d 405, 433 (5th Cir. 2016) (quoting Thunder Basin Coal Co. v.
Reich, 510 U.S. 200, 220–21 (1994) (Scalia, J., concurring in part and in the judgment)),
“because federal agencies generally enjoy sovereign immunity for any monetary damages,”
Wages & White Lion Invs., L.L.C. v. FDA, 16 F.4th 1130, 1142 (5th Cir. 2021) (citations
omitted). So even though LISD might be able to avoid the harms it fears through monetary
relief, such relief will never come. Just as in a situation where the defendant may be
insolvent upon final judgment, thus precluding recovery of money damages, see, e.g., In re
Fredeman Litig., 843 F.2d 821, 826–27 (5th Cir.1988) (citations omitted), injunctive relief is
justified where a regulated entity can never recover its compliance costs. See LabMD, Inc. v.
Fed. Trade Comm’n, 678 F. App’x 816, 821 (11th Cir. 2016) (finding irreparable harm by
irrecoverable compliance costs pending appeal); Georgia v. Biden, 2021 WL 5779939 at *4,
*11 (citing overhead of collecting vaccination data from covered employees); but see Freedom
Holdings, Inc. v. Spitzer, 408 F.3d 112, 115 (2d Cir. 2005) (“However, ordinary compliance
costs are typically insufficient to constitute irreparable harm.”).
The harm to LISD if it chooses not to comply with the Rule—if it chooses to reject
Head Start funding altogether—would be even more serious. Funding for at least 400
eligible young children would be withdrawn. See 8-9 ¶ 4. The loss of that funding could
result in the loss of up to approximately 40% of LISD’s early education programming. 17
And if the loss of a handful of unvaccinated staff members would be harmful, the loss of
dozens would be catastrophic. Indeed, the National Head Start Association sent a letter to
Secretary Becerra on December 15—after the Rule’s promulgation—indicating that the

17

According to its superintendent, LISD currently serves 1,265 children in its pre-K programs, 540
of whom (42%) receive Head Start funding. Dkt. No. 8-3 at 3.

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Rule’s enforcement “could result in the closing of over 1,300 Head Start classrooms” and
the loss of nearly “60,000 staff.” Dkt. No 39-19 at 1, 3.
Regardless of what LISD chooses, then, the Rule imposes an injury on its ability to
provide services to Head Start students. Either through attrition or the loss of funding,
LISD will be forced to make do for its students with less. And, as explained above, any
added costs it incurs in trying to do so will be unrecoverable given the immunity enjoyed by
the implementing agencies. The District has therefore shown a likelihood of irreparable
injury directly attributable to the Rule’s promulgation.
b.

Texas—Head Start Programs

Texas claims it will suffer two injuries—one to its Head Start programs and one to its
sovereign interests. Dkt. No. 8 at 57–61. Texas Tech University receives funds directly
from HHS for its Early Head Start program, Dkt. No. 8-2 at 2, and therefore stands to lose
those funds if the Rule goes into effect and Texas Tech chooses not to comply. When the
federal government’s regulation imposes costs on a State, those costs constitute an
irreparable injury. See Texas v. Biden, --- F.4th ---, 2021 WL 5882670, at *53 (5th Cir. Dec.
13, 2021). Here, the Rule imposes costs on Texas: Texas will be obliged to either lose
funding for its Head Start programs or bear compliance costs. Just as LISD faces
irreparable harm in unrecoverable costs or the loss of funding, so too does Texas.
c.

Texas—Sovereign Interests

“[S]tates have a sovereign interest in ‘the power to create and enforce a legal code.’”
Tex. Off. of Pub. Util. Couns. v. FCC, 183 F.3d 393, 449 (5th Cir. 1999) (quoting Alfred L. Snapp
& Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 601 (1982)). Pursuant to that interest,
states may have standing based on (1) federal assertions of authority to regulate matters they

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believe they control, (2) federal preemption of state law, and (3) federal interference with the
enforcement of state law, at least where “the state statute at issue regulate[s] behavior or
provide[s] for the administration of a state program” and does not “simply purport [ ] to
immunize [state] citizens from federal law.” Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d
253, 269–70 (4th Cir. 2011); see, e.g., Wyoming ex rel. Crank v. United States, 539 F.3d 1236,
1242 (10th Cir. 2008); Alaska v. U.S. Dep’t of Transp., 868 F.2d 441, 443–44 (D.C. Cir. 1989);
Ohio ex rel. Celebrezze v. U.S. Dep’t of Transp., 766 F.2d 228, 232–33 (6th Cir. 1985); cf.
Diamond v. Charles, 476 U.S. 54, 62 (1986) (commenting that “a State has standing to defend
the constitutionality of its statute” but not relying on that principle). Such intrusions
amount to pressure to change state law.
An injury to a state’s sovereign interest is “necessarily” irreparable. See, e.g., Planned
Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734 F.3d 406, 419 (5th Cir. 2013).
And a state’s interest “in not being pressured to change its law” is sufficiently “related to its
sovereignty” for these purposes. Texas v. United States, 787 F.3d 733, 752 n.38 (5th Cir.
2015). Indeed, irreparable harm exists when a federal regulation prevents a state from
enforcing its duly enacted laws. See, e.g., Abbott v. Perez, 138 S. Ct. 2305, 2324 n.17 (2018)
(citing Maryland v. King, 567 U.S. 1301 (2012) (Roberts, C.J., in chambers)) (“[T]he inability
to enforce its duly enacted plan clearly inflicts irreparable harm on the State.”); King, 567
U.S. at 1303 (quoting New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351
(1977) (Rehnquist, C.J., in chambers)) (“Any time [a state is blocked] from effectuating
statutes enacted by representatives of its people, it suffers a form of irreparable injury.”);
New Motor, 434 U.S. at 1351 (“It also seems to me that any time a State is enjoined by a
court from effectuating statutes enacted by representatives of its people, it suffers a form of

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irreparable injury.”). The distinction between a statute and an executive order is, for today’s
purposes, immaterial. See Tex. Gov’t Code § 418.012; accord E.T. v. Paxton, --- F.4th ---,
2021 WL 5629045, *6 (5th Cir. Dec. 1, 2021) (“While this case centers on an executive
order issued by the Governor under his emergency authority rather than enforcement of a
statute enacted by the plenary legislative authority of the people, the same reasoning
applies.”) (cleaned up).
Texas has elected to prohibit governmental entities from requiring masks or vaccines.
The clear effect of the Rule is to inhibit Texas’s sovereign policy-making and, importantly,
enforcement powers. Texas officials who are obliged to enforce Texas law will be forced to
decide whether to fine school districts and officials who choose to comply with the
regulations simply to avoid losing Head Start funding. The net effect of the Rule is likely to
be increased pressure to amend, or at least decline to enforce, Texas’s laws. Texas therefore
suffers an irreparable injury to its sovereign interests by dint of the Rule’s enforcement.
d.

Texas—Parens Patriae

Texas argues that it, as parens patriae for its citizens, suffers an irreparable injury from
the Rule’s enforcement. “To have [parens patriae], standing the State must assert an injury to
what has been characterized as a ‘quasi-sovereign’ interest, which is a judicial construct that
does not lend itself to a simple or exact definition.” Alfred L. Snapp, 458 U.S. at 601. Three
cases guide the Court’s understanding of a state’s parens patriae interests.
First, in Massachusetts v. Mellon, the Supreme Court made clear that states do not have
parens patriae standing to protect their citizens from the operation of federal law. 262 U.S.
447, 485 (1923). Mellon involved a challenge to the Shepphard-Towner Maternity and
Infancy Act, a federal law enacted under President Harding to reduce infant and maternal

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mortality. Id. at 479. The Act operated by providing funds—with strings—to state health
agencies. Id. States that did not restructure their operations in accordance with the federal
government’s conditions lost federal funding. Id. at 479–82. Massachusetts sued thenTreasury Secretary Andrew Mellon, the official responsible for disbursing the funds, arguing
that the act unconstitutionally legislated “for purposes not national, but local to the states.”
Id. at 479.
The court rejected Massachusetts’s challenge. Id. at 488–89. The court concluded
that Massachusetts sought the court’s decision as to an “abstract question[] of political
power”—not a case or controversy. Id. at 485. The court also concluded that
Massachusetts could not bring suit “as the representative of its citizens”—as parens patriae.
Id. Because “the citizens of Massachusetts are also citizens of the United States,”
Massachusetts had no “duty or power to enforce their rights in respect of their relations with
the federal government.” Id. at 485–86. Instead, it was the United States—whose laws are
supreme under the Constitution—who was the citizens’ parens patriae. Id. at 486.
Six decades later, in Alfred L. Snapp, the court refined the so-called Mellon bar. 458
U.S. 592. While reaffirming Mellon’s core rule, the court restricted it: a state does have
standing to assert its “quasi-sovereign interests” against the federal government. Id. at 607–
08, 610 n.16. Quasi-sovereign interests defy easy exemplification, but the Court defined
them as a state’s interests “in the health and well-being—both physical and economic—of its

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residents in general,” as well as a state’s “interest in not being discriminatorily denied its
rightful status within the federal system.” 18 Id. at 607.
In 2007, the court once again took up the question of parens patriae standing. In
Massachusetts v. EPA, the court held that Massachusetts had standing to challenge the EPA’s
failure to regulate greenhouse gasses under the authority granted to it by the Clean Air Act.
549 U.S. at 526. The majority stated that Mellon did not adopt a broad bar on parens patriae
standing because the Mellon court was not “called upon to adjudicate . . . quasi-sovereign
rights actually invaded or threatened.” Id. at 520 n.17 (emphasis in original). The majority
continued that there was a “critical difference between allowing a State ‘to protect her
citizens from the operation of federal statutes’ (which is what Mellon prohibits) and allowing
a State to assert its rights under federal law (which it has standing to do).” Id. (citing Georgia
v. Pa. R. Co., 324 U.S. 439, 447 (1945)). Accordingly, the Court concluded that since
Massachusetts sought to invoke its own rights under the Clean Air Act rather than its
citizens’, it had standing. See id. at 522–23, 526.
The law today is clear that a state has parens patriae standing when a state “assert[s]
its rights under federal law” but lacks standing when it seeks only to “protect her citizens
from the operation of federal statutes.” Id. at 520 n.17. And the “rights” under federal law
a state may protect encompass two general categories of “quasi-sovereign” interests: those
“in the health and well-being—both physical and economic—of its residents in general,”

18

The Court notes, as others have, that the language in Alfred L. Snapp that “[a] State does not have
standing as parens patriae to bring an action against the federal government” is technically dictum
but, like others, takes the statement at face value for the purposes of this analysis. 458 U.S. 592 at
610 n.16.

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and those “in not being discriminatorily denied its rightful status within the federal system.”
Alfred L. Snapp, 548 U.S. at 607.
With that understanding, the Court concludes that Texas has parens patriae standing.
Texas alleges that the Rule’s enforcement will lead to dramatic declines in Head Start
offerings, adversely impacting students and their families. The plaintiffs have supported
these allegations with declarations from school officials in metropolitan and rural areas
alike, along with extensive evidence of the millions of dollars in funding that are at stake in
the dispute. It is difficult to imagine what could qualify as interests “in the health and wellbeing—both physical and economic—of its residents in general” sufficient to confer parens
patriae standing if not the adverse impact on needy children across the state. Id.
The defendants contends that the state lacks parens patriae standing to protect those
who might be subject to the mask and vaccine requirements. Dkt. No. 26 at 66–68. That
may be so. It is blackletter law that states lack standing to protect their citizens from the
effects of federal laws. Mellon, 262 U.S. at 485. But because the Court concludes that Texas
has a parens patriae interest in protecting the welfare of its neediest children, the Court need
not resolve the thorny issue of whether Texas has standing as parens patriae for Head Start
staff.
e.

Texas—Statutory Interests

Although Texas does not raise its rights under the APA as a form of irreparable
injury, given the Court’s conclusions about notice and comment, the Court concludes that
Texas suffers another form of irreparable injury by being denied its procedural right to
comment on the Rule. Texas v. EEOC, 933 F.3d 433, 447 (5th Cir. 2019) (“A violation of
the APA’s notice-and-comment requirements is one example of a deprivation of a

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procedural right.”). The Rule undercuts Texas’s interest in ensuring compliance with its
laws prohibiting state entities from requiring vaccines or masks; they affect Texas’s ability to
enforce its own laws. See supra Part 3.B.i.c. And only by enjoining the Rule’s
enforcement—with the expectation that the Secretary may try again, this time allowing for
notice and comment before promulgation—will Texas’s procedural rights under the APA be
protected. Thus, the denial of Texas’s opportunity to participate in the rulemaking process
through notice and comment is another form of irreparable injury.
ii.

Traceability

Where “a causal relation between injury and challenged action depends upon the
decision of an independent third party . . . standing is not precluded, but it is ordinarily
substantially more difficult to establish.” California v. Texas, 141 S. Ct. 2104, 2117 (2021)
(internal quotations omitted) (quoting Lujan, 504 U.S. at 562 and citing Clapper v. Amnesty
Int’l USA, 568 U.S. 398, 413 (2013)). The plaintiffs therefore must “adduce facts showing
that [the choices of the relevant third parties] have been or will be made in such manner as
to produce causation.” Lujan, 504 U.S. at 562.
That the plaintiffs have brought forth specific evidence and examples of how they
will be harmed by the Rule’s enforcement distinguishes this case from others where a third
party’s actions might have hurt the plaintiff. See, e.g., California, 141 S. Ct. at 2118–19 (“The
state plaintiffs have failed to show that the challenged minimum essential coverage
provision, without any prospect of penalty, will harm them by leading more individuals to
enroll in these programs.”) (emphasis added); Allen, 468 U.S. at 738 (“[I]t is entirely
speculative whether withdrawal of a particular school’s tax exemption would lead the
school to change its [racially discriminatory] policies. It is just as speculative whether any

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given parent of a child attending such a private school would decide to transfer the child to
public school as a result of any changes in educational or financial policy made by the
private school once it was threatened with loss of tax-exempt status.” (citation omitted));
Clapper, 568 U.S. at 413 (“[E]ven if respondents could show that the Government will seek
[the Foreign Intelligence Surveillance Court’s] authorization to acquire the communications
of respondents’ foreign contacts . . . respondents can only speculate as to whether [that
court] will authorize such surveillance.” (emphasis added)).
This case, then, is akin to Department of Commerce v. New York. 139 S. Ct. 2551
(2019). There, traceability turned on the guess that “third parties will likely react in
predictable ways” to the challenged regulation. Id. at 2566. So too here. Head Start
teachers at LISD have indicated that they do not want to be vaccinated against COVID-19.
One has indicated—predictably—that if put to the choice of his profession or his decision to
remain unvaccinated, he will choose the latter. The traceability demanded by the standing
inquiry ask only whether an injury is “fairly traceable” to the defendant the plaintiff has
chosen to sue. Spokeo, 578 U.S. at 338. That link “requires no more than de facto causality.”
New York, 139 S. Ct. at 2256. The defendant’s actions need not be the “very last step in the
chain of causation.” Bennett v. Spear, 520 U.S. 154, 169 (1997). Thus, far from speculation
about nebulous future harms, the harms LISD and Texas describe are “the predictable effect
of Government action on the decisions of third parties.” New York, 139 S. Ct. at 2256 (citing
Bennett, 520 U.S. at 169–70). Notwithstanding the involvement of third parties in the
equation, traceability is satisfied.

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Redressability

Redressability requires a simple enough inquiry: if the Court enjoins the Rule’s
enforcement, is it likely that the harm the plaintiffs portend will come to pass? The answer
here is equally straightforward: no. So redressability, too, is satisfied.
To elaborate: The plaintiff must show only that its injury is “likely to be redressed by
a favorable decision.” Vill. of Arlington Heights, v. Metro. Hous. Dev. Corp., 429 U.S. 252, 262
(1977) (quoting Simon, 426 U.S. at 38). And to redress an injury, the Court’s remedy must
“personally . . . benefit [the plaintiff] in a tangible way.” Warth v. Seldin, 422 U.S. 490, 508
(1975). Here, both are true of the relief the plaintiffs seek—an injunction preventing the
enforcement of the challenged regulations. The Rule aims to add conditions to grants given
to Head Start providers. If the Rule were to go into effect, the government could terminate
grants to providers who do not adopt the Rule’s vaccine and mask requirements. If the
government cannot enforce the conditions, however, the participants are free to maintain
the status quo without jeopardizing their Head Start funding. That would allow LISD to
continue to, for example, employ in Head Start classrooms teachers who are unmasked or
unvaccinated, thus avoiding the need to reassign or terminate employees and find
replacements. An injunction barring enforcement of the challenged regulations would
therefore remedy the plaintiffs’ harms.
C.

Balance of Harms and the Public Interest

The third and fourth requirements for issuance of a preliminary injunction—the
balance of harms and whether the requested injunction will serve the public interest—
“merge when the Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435
(2009). Therefore, the Court considers them together. The Court “must balance the

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competing claims of injury and must consider the effect on each party of the granting or
withholding of the requested relief.” Winter, 555 U.S. at 24 (citing Amoco Prod. Co. v. Vill. Of
Gambell, 480 U.S. 531, 542 (1987)).
Here, the equities and public interest cut both ways, but ultimately favor plaintiffs.
The Rule will likely cause further staff shortages to the existing hiring crisis, loss of funding,
and program closures. Dkt. Nos. 8-3; 8-7; 8-8; 8-9. The Secretary recognizes these risks. 86
Fed. Reg. 68,091 (“There are already significant challenges in recruiting and retaining staff
among early care and education providers including Head Start and the requirements in this
rule could exacerbate this issue.”). As a result, children who have previously received pre-K
Head Start services and funding will be prevented from participating in “an essential part of
preparing children, particularly children living in poverty, for success in school and life.”
Dkt. No. 8-3 ¶ 8; see also 86 Fed Reg. at 68,057 (outlining several other harms to children
and families due to program closures).
Furthermore, local programs have serious reliance interests on preserving the status
quo of local flexibility. The Rule constitutes a drastic change from this “precedent.” See
Dkt. No. 39-19 at 1. As the National Head Start Association explained in its recent letter to
the Secretary, “Head Start’s strength has come from the flexibility of local practices that
enables programs to meet community and family needs.” Id.
On the other hand, reducing the spread of COVID-19 is critical to public health. See
86 Fed. Reg. at 68,055. And COVID-19 transmission could also lead to program closures.
Id. at 68,056–57. But given the relatively high vaccination rate of staff, the risk of program
closures may be greater under the Rule than in its absence.

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Additionally, the “public interest is in having governmental agencies abide by the
federal laws that govern their existence and operations.” Wages & White Lion, 16 F.4th at
1143 (quoting Texas v. Biden, 10 F.4th 538, 559 (5th Cir. 2021)). Here, the Court finds that
there is a substantial likelihood that the Secretary issued the Rule unlawfully. And
generally, there is “no public interest in the perpetuation of unlawful agency action.” League
of Women Voters of the U.S. v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016) (citing Pursuing Am.’s
Greatness v. Fed. Election Comm’n, 831 F.3d 500, 511 (D.C. Cir. 2016), and Gordon v. Holder,
721 F.3d 638, 653 (D.C. Cir. 2013)).
In sum, the Court finds that the balance of equities and the public interest weigh in
favor of granting plaintiffs’ motion for preliminary injunction.
4.

Scope of Relief
Texas seeks a nationwide injunction. Dkt. No. 38 at 29. During the hearing,

counsel for Texas argued that nationwide relief was necessary because the APA instructs
courts to “set aside” unlawful agency action. Tr. at 90–91; see generally 5 U.S.C.
§ 706(2)(A), (C). In light of Fifth Circuit precedent and the record before it, the Court
declines to issue a nationwide injunction. Instead, the Court will limit the scope of its
injunction based on the parties and evidence. The Interim Final Rule’s implementation and
enforcement will be enjoined in Texas.
The Fifth Circuit recently addressed the proper scope of injunctions when reviewing
a nationwide injunction. Becerra, 2021 WL 5913302 at *2–3. A district court enjoined
nationwide the enforcement of the Secretary’s vaccination mandate for Medicare- and
Medicaid-certified providers. Id. The Fifth Circuit narrowed the injunction to the 14
plaintiff states, reiterating that an injunction’s scope must be justified by the circumstances.

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Id. at *2–3 (citing Texas v. United States, 809 F.3d 134, 188 (5th Cir. 2015), aff’d by an equally
divided court sub nom. United States v. Texas, 136 S. Ct. 2271, 2272 (2016)). The panel
explained that “[p]rinciples of judicial restraint control here,” and noted that “[o]ther courts
are considering these same issues, with several courts already and inconsistently ruling.” Id.
at *2. And while nationwide injunctions are permissible in the immigration context due to
the constitutional command for uniform immigration laws and the concern that limited
immigration injunctions would be ineffective, that does not mean that “nationwide
injunctions are required or even the norm.” Id.; see also Texas, 809 F.3d at 187–88 (affirming
nationwide injunction of DAPA in immigration context because the Constitution requires a
uniform rule of naturalization).
Here, similar circumstances counsel against a nationwide injunction. As in Louisiana
v. Becerra, the Court faces an issue that, unlike immigration, does not have a constitutional
command for nationwide uniformity. Moreover, as in Louisiana v. Becerra, the same issues
are considered in two other cases, both in the Western District of Louisiana: Louisiana v.
Becerra, No. 3:21-CV-04370 (W.D. La.); Brick v. Biden, No. 2: 21-CV-04386 (W.D. La.). In
the former case, over 20 states challenge the Head Start mandates, and the court has yet to
issue its decision. Louisiana v. Becerra, Dkt. No. 1, No. 3:21-CV-04370 (W.D. La.). In
contrast, this Court has only two plaintiffs before it—Texas and a Texas school district,
LISD. Dkt. No. 1 at 1. Furthermore, the great majority of evidence before the Court is
limited to harm caused to Head Start programs in Texas. See Dkt. Nos. 8-2, 8-3, 8-4, 8-5, 86, 8-7, 8-8, and 8-9; but see, e.g., Dkt. Nos. 39-15; 39-19. Thus, the Court concludes that the
circumstances do not justify or require a nationwide injunction; rather, it will follow Fifth
Circuit precedent and limit the injunction based on the parties, issues, and evidence before

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it. Louisiana v. Becerra, 2021 WL 5913302 at *2-3; see also Dep’t of Homeland Sec. v. New York,
140 S. Ct. 599, 600 (2020) (Gorsuch, J., concurring) (“Equitable remedies, like remedies in
general, are meant to redress the injuries sustained by a particular plaintiff in a particular
lawsuit.”). The Court’s injunction is therefore limited to Texas.
5.

Conclusion
For all the above reasons, the Court grants the plaintiffs’ motion for a preliminary

injunction. The Court orders that defendants are preliminarily enjoined from implementing
and enforcing the Interim Final Rule with Comment Period, Vaccine and Mask
Requirements to Mitigate the Spread of COVID-19 in Head Start Programs, 86 Fed. Reg.
68,052 (Nov. 30, 2021), in the state of Texas pending a trial on the merits of this action or
until further order of this Court. Defendants shall immediately cease all implementation or
enforcement of the Interim Final Rule with Comment Period as to any Head Start program
within the State of Texas. Because defendants have appeared and the Court conducted a
hearing on plaintiffs’ motion, Federal Rule of Civil Procedure 65(b) no longer applies. See
e.g., New England Health Care, Emps. Union, Dist. 1199, SEIU/AFL-CIO v. Rowland, 170 F.
Supp. 2d 199, 201 n.2 (D. Conn. 2001) (denying TRO as moot in light of the hearing on the
preliminary motion). Therefore, the Court denies plaintiffs’ request for a temporary
restraining order as moot.
The Court further orders that no security bond shall be required under Federal Rule
of Civil Procedure 65(c).
So ordered on December 31, 2021
____________________________________
JAMES WESLEY HENDRIX
UNITED STATES DISTRICT JUDGE

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