Braidwood Mgmt., Inc. v. Becerra

104 F.4th 930

BRAIDWOOD MANAGEMENT, INCORPORATED;John Scott Kelley; Kelley Orthodontics; Ashley Maxwell;Zach Maxwell; Joel Starnes, Plaintiffs—appellees/cross-Appellants,Joel Miller; Gregory Scheideman, Plaintiffs—cross-Appellants, v. Xavier BECERRA, Secretary, U.S. Department of Health and Human Services,in His Official Capacity as Secretary of Health and Human Services;United States of America; Janet Yellen, Secretary, U.S. Department of Treasury,in Her Official Capacity as Secretary of the Treasury;Julie A. Su, Acting Secretary, U.S. Department of Labor,in Her Official Capacity as Secretary of Labor, Defendants—appellants/Cross-Appellees.

No. 23-10326

United States Court of Appeals, Fifth Circuit

FILED June 21, 2024

Appeal from the United States District Court for the Northern District of Texas, USDC No. 4:20-CV-283, Reed Charles O'Connor, U.S. District Judge

Jonathan F. Mitchell, Austin, TX, Charles William Fillmore, Attorney, Fillmore Law Firm, L.L.P., Fort Worth, TX, Gene Patrick Hamilton, America First Legal Foundation, Washington, DC, for Plaintiffs-Appellees/Cross-Appellants Braidwood Management, Incorporated, John Scott Kelley, Kelley Orthodontics, Ashley Maxwell, Zach Maxwell, Joel Starnes.

Jonathan F. Mitchell, Austin, TX, for Plaintiffs-Appellees/Cross-Appellants Joel Miller, Gregory Scheideman.

Daniel J. Aguilar, Christopher M. Lynch, U.S. Department of Justice, Civil Division, Washington, DC, Alisa Beth Klein, Esq., Michael S. Raab, U.S. Department of Justice, Civil Division, Appellate Section, Washington, DC, Brian Walters Stoltz, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Defendants-Appellants/Cross-Appellees.

Nicolas Sansone, Allison M. Zieve, Public Citizen Litigation Group, Washington, DC, for Amici Curiae American Lung Association, Adult Vaccine Access Coalition, American Heart Association, Campaign for Tobacco-Free Kids, GO2 for Lung Cancer, LUNGevity Foundation, Public Citizen, Truth Initiative Foundation, American Lung Association, AcademyHealth, Public Health Law Center.

Connie K. Chan, Barbara Chisholm, Attorney, Corinne Johnson, Attorney, Altshuler Berzon, L.L.P., San Francisco, CA, Claire Prestel, Service Employees International Union, Washington, DC, for Amicus Curiae Service Employees International Union.

Daniel Jarcho, Alston & Bird, L.L.P., Washington, DC, for Amici Curiae United States of Care, Michigan League for Public Policy, West Virginians for Affordable Health Care, Consumers for Affordable Health Care, New Day Nevada, Young Invincibles, Shriver Center on Poverty Law, AcademyHealth, Colorado Consumer Health Initiative, Pennsylvania Health Access Network, Committee to Protect Health Care, Utah Health Policy Project, Community Catalyst, Protect Our Care, ACA Consumer Advocacy, National Partnership for Women and Families.

Beth Bivans Petronio, Esq., Trial Attorney, K & L Gates, L.L.P., Dallas, TX, for Amici Curiae American Cancer Society, American Cancer Society Cancer Action Network, American Kidney Fund, Arthritis Foundation, CancerCare, Cancer Support Community, Cystic Fibrosis Foundation, Epilepsy Foundation, Hemophilia Federation of America, Leukemia and Lymphoma Society, National Minority Quality Forum, National Multiple Sclerosis Society, National Patient Advocate Foundation, AIDS Institute, WomenHeart, American Cancer Society, American Cancer Society Cancer Action Network, American Kidney Fund, Arthritis Foundation, CancerCare, Cancer Support Community, Crohn's and Colitis Foundation, Cystic Fibrosis Foundation, Epilepsy Foundation, Hemophilia Federation of America, Leukemia and Lymphoma Society, National

Minority Quality Forum, National Multiple Sclerosis Society, National Patient Advocate Foundation, AIDS Institute, WomenHeart.

Andrew John Pincus, Mayer Brown, L.L.P., Washington, DC, for Amici Curiae American Public Health Association, Public Health Deans and Scholars, Robert Wood Johnson Foundation, Trust for Americas Health, ChangeLab Solutions.

Madeline Gitomer, Democracy Forward Foundation, Washington, DC, for Amici Curiae American Medical Association, American College of Obstetricians and Gynecologists, Society for Maternal-Fetal Medicine, American Academy of Pediatrics, American Medical Women's Association, American Academy of Family Physicians, National Medical Association, Infectious Diseases Society of America, American Thoracic Society, American College of Chest Physicians, National Hispanic Medical Association, American Society of Clinical Oncology.

Sean Michael Marotta, Hogan Lovells US, L.L.P., Washington, DC, David Willner, Hogan Lovells US, L.L.P., Denver, CO, for Amici Curiae American Hospital Association, Catholic Health Association of the United States, Federation of American Hospitals, America's Essential Hospitals, Association of American Medical Colleges.

Richard Hughes, IV, Esq., Attorney, Epstein Becker & Green, P.C., Washington, DC, for Amici Curiae HIV and Hepatitis Policy Institute, AIDS Alabama, AIDS Foundation of Chicago, AIDS United, American Academy of HIV Medicine.

K. Lee Blalack, II, Brian David Boyle, O'Melveny & Myers, L.L.P., Washington, DC, for Amicus Curiae Blue Cross Blue Shield Association.

Matthew S. Hellman, Jenner & Block, L.L.P., Washington, DC, for Amicus Curiae 49 Bipartisan Economic and Other Social Science Scholars.

Sarah A. Hunger, Illinois Attorney General's Office, Solicitor General's Office, Chicago, IL, for Amici Curiae State of Illinois, State of Arizona, State of California, State of Colorado, State of Connecticut, State of Delaware, District of Columbia, State of Hawaii, State of Maine, State of Maryland, State of Massachusetts, State of Michigan, State of Minnesota, State of Nevada, State of New Jersey, State of New Mexico, State of New York, State of North Carolina, State of Oregon, State of Pennsylvania, State of Rhode Island, State of Vermont, State of Washington, State of Wisconsin.

William Alvarado Rivera, SVP, Litigation, AARP Foundation Litigation, Washington, DC, for Amici Curiae American Association of Retired Persons, American Association of Retired Persons Foundation.

Martha Jane Perkins, National Health Law Program, Chapel Hill, NC, for Amici Curiae National Health Law Program, Asian & Pacific Islander American Health Forum, Center for Medicare Advocacy, Justice in Aging, National Association of Pediatric Nurse Practitioners, National Black Justice Coalition, Transhealth, Alabama Disabilities Advocacy Program, Arizona Center for Law in the Public Interest, Center for Civil Justice, Community Legal Aid Society, Incorporated, Florida Health Justice Project, Indiana Justice Project, Kentucky Equal Justice Center, Nebraska Appleseed Center for Law in the Public Interest, Northwest Health Law Advocates, Public Justice Center, Tennessee Justice Center.

David Charles Frederick, Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C., Washington, DC, for Amicus Curiae Susan G. Komen Breast Cancer Foundation, Incorporated.

Andrew H. DeVoogd, Mintz Levin Cohn Ferris Glovsky & Popeo, P.C., Boston, MA, for Amici Curiae HIV Medicine Association of the Infectious Disease Society of America, National Alliance of State and Territorial AIDS Directors.

Jonathan Michael Eisenberg, AIDS Healthcare Foundation, Los Angeles, CA, for Amicus Curiae AIDS Healthcare Foundation.

Kwaku A. Akowuah, Madeleine Joseph, Sidley Austin, L.L.P., Washington, DC, for Amicus Curiae Gilead Sciences, Incorporated.

Jay R. Carson, Wegman Hessler Valore, Cleveland, OH, for Amicus Curiae Buckeye Institute.

Lanora Christine Pettit, Office of the Texas Attorney General, Solicitor General Division, Austin, TX, for Amicus Curiae State of Texas.

Carrie Yvette Flaxman, Democracy Forward Foundation, Washington, DC, for Amici Curiae American Medical Association, Aerospace Medical Association, American Academy of Ophthalmology, American Academy of Pediatrics, American College of Lifestyle Medicine, American College of Obstetricians and Gynecologists, American College of Occupational and Environmental Medicine, American College of Physicians, American College of Preventive Medicine, American Gastroenterological Association, American Psychiatric Association, American Society of Clinical Oncology, American Society for Gastrointestinal Endoscopy, American Society of Nephrology, GLMA: Health Professionals Advancing LGBTQ + Equality, National Hispanic Medical Association, National Medical Association, Renal Physicians Association, Society for Maternal-Fetal Medicine, Society of Laparoscopic and Robotic Surgeons.

Alison Ann Tanner, National Women's Law Center, Washington, DC, for Amicus Curiae National Women's Law Center.

Before Willett, Wilson, and Ramirez, Circuit Judges.

Don R. Willett, Circuit Judge:

The Affordable Care Act requires private insurers to cover certain kinds of "preventive care," including contraception, HPV vaccines, and drugs preventing the transmission of HIV. The plaintiffs are a group of individuals and businesses who have religious objections to these preventive-care mandates and challenged them on multiple grounds. They contend, among other things, that the preventive-care mandates are unlawful because the agencies that issued them violate Article II of the Constitution, insofar as their members are principal officers of the United States who have not been validly appointed under the Appointments Clause. In a series of summary-judgment rulings, the district court mostly agreed, vacating all agency actions taken to enforce the mandates under the Administrative Procedure Act and issuing both party-specific and universal injunctive relief.

Our decision today is something of a mixed bag. With respect to one of the challenged administrative bodies, the United States Preventive Services Task Force, we agree that the unreviewable power it wields—the power to issue preventive-care recommendations that insurers must cover by law—renders its members principal officers of the United States who have not been validly appointed under Article II of...