BST Holdings, Et Al, v. OSHA Order For Stay
BST Holdings, Et Al, v. OSHA Order For Stay
FILED
November 12, 2021
No. 21-60845 Lyle W. Cayce
Clerk
Petitioners,
versus
No. 21-60845
Respondents.
1
Cong. Rsch. Serv., Occupational Safety and Health
Administration (OSHA): Emergency Temporary Standards (ETS)
and COVID-19, at 34 tbl. A-1 (Nov. 10, 2021), available at
https://crsreports.congress.gov/product/pdf/R/R46288.
2
It bears noting at the outset that most of the few ETSs issued by OSHA were
immediately stayed pending merits review. See Asbestos Info. Ass’n/N. Am. v. OSHA, 727
F.2d 415, 418 (5th Cir. 1984); Indus. Union Dep’t, AFL-CIO v. Bingham, 570 F.2d 965, 968
(D.C. Cir. 1977); Taylor Diving Salvage Co. v. U.S. Dep’t of Lab., 537 F.2d 819, 820–21 (5th
2
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simple: courts and the Agency have agreed for generations that
“[e]xtraordinary power is delivered to [OSHA] under the emergency
provisions of the Occupational Safety and Health Act,” so “[t]hat power
should be delicately exercised, and only in those emergency situations which
require it.” Fla. Peach Growers Ass’n v. U.S. Dep’t of Lab., 489 F.2d 120, 129–
30 (5th Cir. 1974).
This case concerns OSHA’s most recent ETS—the Agency’s
November 5, 2021 Emergency Temporary Standard (the “Mandate”)
requiring employees of covered employers to undergo COVID-19
vaccination or take weekly COVID-19 tests and wear a mask. 3 An array of
petitioners seeks a stay barring OSHA from enforcing the Mandate during
the pendency of judicial review. On November 6, 2021, we agreed to stay the
Mandate pending briefing and expedited judicial review. Having conducted
that expedited review, we reaffirm our initial stay.
I.
OSHA promulgated its much anticipated 4 vaccine mandate on
November 5, 2021. Framed as an ETS, the Mandate requires all employers
of 100 or more employees to “develop, implement, and enforce a mandatory
COVID-19 vaccination policy” and require any workers who remain
Cir. 1976) (per curiam); Fla. Peach Growers Ass’n v. U.S. Dep’t of Lab., 489 F.2d 120, 126
(5th Cir. 1974).
3
See COVID-19 Vaccination and Testing; Emergency Temporary Standard, 86
Fed. Reg. 61,402 (Nov. 5, 2021) (to be codified at 29 C.F.R. pts. 1910, 1915, 1917, 1918,
1926, and 1928).
4
Debates over the Biden Administration’s forthcoming vaccine mandate roiled the
country throughout much of the Fall. For obvious reasons, the Mandate affects every
person in America in one way or another.
3
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5
Because these petitioners are the targets of the Mandate and bear the brunt of
OSHA’s regulatory power, we principally analyze the petitions from their perspective.
This is not to say that the claims of other petitioners such as States or individual citizens
would be any less successful on a thorough analysis.
6
“Only one of the petitioners needs to have standing to permit us to consider the
petition for review.” Massachusetts v. EPA, 549 U.S. 497, 518 (2007).
4
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7
Our November 6, 2021 stay order preserved the status quo during the pendency
of briefing. The unusual procedural posture of this case makes for an unusual process.
Ordinarily, a federal plaintiff aggrieved by an adversary’s threatened course of action must
go to a district court to seek injunctive relief at the outset. In this ordinary scenario, a
preliminary injunction precedes a permanent injunction, and trial-court review precedes
appellate review. But this is not a typical case. Here, the statute giving OSHA the power to
issue emergency temporary standards like the Mandate also provides for direct and
immediate judicial review in “the United States court of appeals for the circuit wherein”
“[a]ny person who may be adversely affected by” an ETS “resides or has his principal
place of business.” See 29 U.S.C. § 655(f). Satisfied of our jurisdiction to proceed under
that provision, but mindful of our unusual procedural posture, we apply the traditional
factors for a stay pending judicial review and draw factual support from the attachments to
the pleadings, uncontested facts, and judicial notice.
5
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8
The nondelegation doctrine constrains Congress’s ability to delegate its
legislative authority to executive agencies. See, e.g., Mistretta v. United States, 488 U.S. 361,
371–72 (1989) (“The Constitution provides that ‘[a]ll legislative Powers herein granted
shall be vested in a Congress of the United States’ . . . and we have long insisted that ‘the
integrity and maintenance of the system of government ordered by the Constitution’
mandate that Congress generally cannot delegate its legislative power to another Branch.”
(first quoting U.S. Const. art. I, § 1; then quoting Field v. Clark, 143 U.S. 649, 692
(1892))).
9
But see infra subsection II.A.2.f.
6
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10
As Justice Gorsuch recently observed, society’s interest in slowing the spread of
COVID-19 “cannot qualify as [compelling] forever,” for “[i]f human nature and history
teach anything, it is that civil liberties face grave risks when governments proclaim
indefinite states of emergency.” Does 1–3 v. Mills, --- S. Ct. ---, 2021 WL 5027177, at *3
(Oct. 29, 2021) (Gorsuch, J., dissenting); see also Fla. Peach Growers, 489 F.2d at 131
(situation ongoing for “last several years . . . fail[ed] to qualify for [OSHA] emergency
measures”).
11
The President announced his intention to impose a national vaccine mandate on
September 9, 2021. See, e.g., Kevin Liptak & Kaitlan Collins, Biden Announces New Vaccine
Mandates that Could Cover 100 Million Americans, CNN (Sept. 9, 2021),
https://www.cnn.com/2021/09/09/politics/joe-biden-covid-speech/index.html
(“‘We’ve been patient, but our patience is wearing thin, and your refusal has cost all of us,’
Biden said, his tone hardening toward Americans who still refuse to receive a vaccine
despite ample evidence of their safety and full approval of one . . . .”). OSHA issued the
Mandate nearly two months later, on November 5, 2021, and the Mandate itself
prominently features yet another two-month delay. One could query how an “emergency”
could prompt such a “deliberate” response. In similar cases, we’ve held that OSHA’s
failure to act promptly “does not conclusively establish that a situation is not an
emergency,” but “may be evidence that a situation is not a true emergency.” Asbestos Info.,
727 F.2d at 423 (emphasis added).
12
See supra note 11.
13
On September 9, 2021, White House Chief of Staff Ron Klain retweeted MSNBC
anchor Stephanie Ruhle’s tweet that stated, “OSHA doing this vaxx mandate as an
emergency workplace safety rule is the ultimate work-around for the Federal govt to require
vaccinations.” See, e.g., Pet’rs Burnett Specialists, Choice Staffing, LLC, and Staff Force
Inc.’s Reply Brief at 4 (emphasis added).
7
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vaccine mandate. The vehicle it landed on was an OSHA ETS. The statute
empowering OSHA allows OSHA to bypass typical notice-and-comment
proceedings for six months by providing “for an emergency temporary
standard to take immediate effect upon publication in the Federal Register”
if it “determines (A) that employees are exposed to grave danger from
exposure to substances or agents determined to be toxic or physically harmful
or from new hazards, and (B) that such emergency standard is necessary to
protect employees from such danger.” 29 U.S.C. § 655(c)(1).
As the name suggests, emergency temporary standards “are an
‘unusual response’ to ‘exceptional circumstances.’” Int’l Chem. Workers,
830 F.2d at 371 (quoting Pub. Citizen Health Rsch. Grp. v. Auchter, 702 F.2d
1150, 1155 (D.C. Cir. 1983)). Thus, courts have uniformly observed that
OSHA’s authority to establish emergency temporary standards under
§ 655(c) “is an ‘extraordinary power’ that is to be ‘delicately exercised’ in
only certain ‘limited situations.’” Id. at 370 (quoting Pub. Citizen, 702 F.2d
at 1155). 14
But the Mandate at issue here is anything but a “delicate[] exercise[]”
of this “extraordinary power.” Cf. Pub. Citizen, 702 F.2d at 1155. Quite the
opposite, rather than a delicately handled scalpel, the Mandate is a one-size-
fits-all sledgehammer that makes hardly any attempt to account for
differences in workplaces (and workers) that have more than a little bearing
on workers’ varying degrees of susceptibility to the supposedly “grave
danger” the Mandate purports to address.
14
The Agency has thus conceded in the past that “[t]he OSH Act does not
authorize OSHA to issue sweeping health standards to address entire classes of known and
unknown infectious diseases on an emergency basis without notice and comment.” See
Department of Labor’s Resp. to the Emergency Pet. for a Writ of Mandamus at 33–34, In
re AFL-CIO, No. 20-1158 (D.C. Cir. May 29, 2020) [hereinafter OSHA D.C. Circuit Brief].
8
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2.
Thus, as § 655(c)(1) plainly provides, to be lawfully enacted, an ETS
must: (1) address “substances or agents determined to be toxic or physically
harmful”—or “new hazards”—in the workplace; (2) show that workers are
exposed to such “substances,” “agents,” or “new hazards” in the
workplace; (3) show that said exposure places workers in “grave danger”;
and (4) be “necessary” to alleviate employees’ exposure to gravely
dangerous hazards in the workplace. As we have noted in the past, the
precision of this standard makes it a difficult one to meet. See Fla. Peach
Growers, 489 F.2d at 130 (observing that OSHA’s ETS authority “requires
determination of danger from exposure to harmful substances, not just a
danger of exposure; and, not exposure to just a danger, but to a grave danger;
and, not the necessity of just a temporary standard, but that an emergency
[temporary] standard is necessary”). 15
(a)
In its brief, Texas makes a compelling argument that § 655(c)(1)’s
neighboring phrases “substances or agents” and “toxic or physically
harmful” place an airborne virus beyond the purview of an OSHA ETS in the
first place. To avoid “giving unintended breadth to the Acts of Congress,”
courts “rely on the principle of noscitur a sociis—a word is known by the
company it keeps.” Yates v. United States, 574 U.S. 528, 543 (2015) (cleaned
up). Here, OSHA’s attempt to shoehorn an airborne virus that is both widely
present in society (and thus not particular to any workplace) and non-life-
15
In prior litigation, OSHA acknowledged that many “workplaces” covered by a
COVID-19 ETS “are not merely workplaces,” but are also “stores, restaurants, and other
places occupied by workers and the general public alike, in which the measures called for
require a broader lens—and at times a broader mandate—than available to OSHA.” See
OSHA D.C. Circuit Brief at 20.
9
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10
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discussed below, this kind of overbreadth plagues the Mandate generally. See
infra subsection II.A.2.d.
(c)
Equally problematic, however, is that it remains unclear that COVID-
19—however tragic and devastating the pandemic has been—poses the kind
of grave danger § 655(c)(1) contemplates. See, e.g., Int’l Chem. Workers, 830
F.2d at 371 (noting that OSHA itself once concluded “that to be a ‘grave
danger,’ it is not sufficient that a chemical, such as cadmium, can cause cancer
or kidney damage at a high level of exposure” (emphasis added)). For starters,
the Mandate itself concedes that the effects of COVID-19 may range from
“mild” to “critical.” As important, however, the status of the spread of the
virus has varied since the President announced the general parameters of the
Mandate in September. (And of course, this all assumes that COVID-19
poses any significant danger to workers to begin with; for the more than
seventy-eight percent 16 of Americans aged 12 and older either fully or partially
inoculated against it, the virus poses—the Administration assures us—little
risk at all.) See, e.g., 86 Fed. Reg. 61,402, 61,402–03 (“COVID-19 vaccines
authorized or approved by the [FDA] effectively protect vaccinated
individuals against severe illness and death from COVID-19.”).
The Administration’s prior statements in this regard further belie the
notion that COVID-19 poses the kind of emergency that allows OSHA to take
the extreme measure of an ETS. In reviewing agency pronouncements,
courts need not turn a blind eye to the statements of those issuing such
pronouncements. See, e.g., FCC v. Fox Television Stations, Inc., 556 U.S. 502,
515 (2009). In fact, courts have an affirmative duty not to do so. It is thus
16
See CDC, Covid Data Tracker, https://covid.cdc.gov/covid-data-
tracker/#datatracker-home.
11
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critical to note that the Mandate makes no serious attempt to explain why
OSHA and the President himself 17 were against vaccine mandates before they
were for one here. See, e.g., Occupational Exposure to Bloodborne Pathogens,
54 Fed. Reg. 23,042, 23,045 (May 30, 1989) (“Health in general is an
intensely personal matter. . . . OSHA prefers to encourage rather than try to
force by governmental coercion, employee cooperation in [a] vaccination
program.”); Letter from Loren Sweatt, Principal Deputy Assistant Sec’y,
OSHA, to Richard L. Trumka, President, AFL-CIO at 3 (May 29, 2020)
[hereinafter Sweatt Letter] (acknowledging as a general matter that it “would
not be necessary for OSHA to issue an ETS to protect workers from
infectious diseases” because “OSHA lacks evidence to conclude that all
infectious diseases to which employees may be exposed at a workplace
constitute a ‘grave danger’ for which an ETS is an appropriate remedy”).
Because it is generally “arbitrary or capricious” to “depart from a prior
policy sub silentio,” agencies must typically provide a “detailed explanation”
for contradicting a prior policy, particularly when the “prior policy has
engendered serious reliance interests.” FCC v. Fox, 556 U.S. at 515. OSHA’s
reversal here strains credulity, as does its pretextual basis.18 Such
shortcomings are all hallmarks of unlawful agency actions.
To be sure, “OSHA’s assessment of . . . scientifically complex [facts]
and its balancing of the competing policies that underlie the decision whether
to issue an ETS . . . are entitled to great deference,” but this is not a case
17
In December of 2020, the President was quoted as saying, “No I don’t think
[vaccines] should be mandatory.” See, e.g., Jacob Jarvis, Fact Check: Did Joe Biden Reject
Idea of Mandatory Vaccines in December 2020, Newsweek (Sept. 10, 2021),
https://www.newsweek.com/fact-check-joe-biden-no-vaccines-mandatory-december-
2020-1627774.
18
See supra note 13 (Klain endorsement of the term “work-around”).
12
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where any amount of deference would make a bit of difference. Int’l Chem.
Workers, 830 F.2d at 371.
(d)
We next consider the necessity of the Mandate. The Mandate is
staggeringly overbroad. Applying to 2 out of 3 private-sector employees in
America, in workplaces as diverse as the country itself, the Mandate fails to
consider what is perhaps the most salient fact of all: the ongoing threat of
COVID-19 is more dangerous to some employees than to other employees. All
else equal, a 28 year-old trucker spending the bulk of his workday in the
solitude of his cab is simply less vulnerable to COVID-19 than a 62 year-old
prison janitor. Likewise, a naturally immune unvaccinated worker is
presumably at less risk than an unvaccinated worker who has never had the
virus. The list goes on, but one constant remains—the Mandate fails almost
completely to address, or even respond to, much of this reality and common
sense.
Moreover, earlier in the pandemic, the Agency recognized the
practical impossibility of tailoring an effective ETS in response to COVID-
19. See OSHA D.C. Circuit Brief at 16, 17, 21, 26 (“Based on substantial
evidence, OSHA determined that an ETS is not necessary both because there
are existing OSHA and non-OSHA standards that address COVID-19 and
because an ETS would actually be counterproductive. . . . To address all
employers and to do so with the requisite dispatch, an ETS would at best be
an enshrinement of these general and universally known measures that are
already enforceable through existing OSHA tools that require employers to
assess and address extant hazards. OSHA’s time and resources are better
spent issuing industry-specific guidance that adds real substance and permits
flexibility as we learn more about this virus. Given that we learn more about
COVID-19 every day, setting rules in stone through an ETS (and later a
13
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19
The Mandate is also underinclusive in the solutions it proposes. Indeed, even in
its fullest force, the Mandate cannot prevent vaccinated employees from spreading the
virus in the workplace, or prevent unvaccinated employees from spreading the virus in
between weekly tests.
15
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(e)
If the deficiencies we’ve already covered aren’t enough, other
miscellaneous considerations seal the Mandate’s fate. For one, “[t]he
Agency cannot use its ETS powers as a stop-gap measure,” Asbestos Info., 727
F.2d at 422, but concedes that that is precisely what the Mandate is intended
to do here. See 86 Fed. Reg. 61,402, 61,434–35 (admitting that “[c]rafting a
multi-layered standard that is comprehensive and feasible for all covered
work settings, including mixed settings of vaccinated and unvaccinated
workers, is an extraordinarily challenging and complicated undertaking, yet
the grave danger that COVID-19 poses to unvaccinated workers obliges the
agency to act as quickly as possible”). For another, courts have consistently
recognized that the “protection afforded to workers [by an ETS] should
outweigh the economic consequences to the regulated industry,” Asbestos
Info., 727 F.2d at 423, but for all the reasons we’ve previously noted, the
Mandate flunks a cost-benefit analysis here.
(f)
It lastly bears noting that the Mandate raises serious constitutional
concerns that either make it more likely that the petitioners will succeed on
the merits, or at least counsel against adopting OSHA’s broad reading of
§ 655(c) as a matter of statutory interpretation.
First, the Mandate likely exceeds the federal government’s authority
under the Commerce Clause because it regulates noneconomic inactivity that
falls squarely within the States’ police power. A person’s choice to remain
unvaccinated and forgo regular testing is noneconomic inactivity. Cf. NFIB
v. Sebelius, 567 U.S. 519, 522 (2012) (Roberts, C.J., concurring); see also id. at
652–53 (Scalia, J., dissenting). And to mandate that a person receive a vaccine
or undergo testing falls squarely within the States’ police power. Zucht v.
King, 260 U.S. 174, 176 (1922) (noting that precedent had long “settled that
16
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20
Here, it is simply unlikely that Congress assigned authority over such a
monumental policy decision to OSHA—hard hats and safety goggles, this is not.
18
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21
Not to mention the free religious exercise of certain employees. See U.S.
Const. amend. I; cf. Holt v. Hobbs, 574 U.S. 352, 361 (2015).
19
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22
86 Fed. Reg. 61,402 (Nov. 5, 2021) (to be codified at 29 C.F.R. pts. 1910, 1915,
1917, 1918, 1926, and 1928).
23
The Clerk of Court shall ensure that this order applies with equal force to all
related motions consolidated into this case in accordance with the court’s November 6,
2021 order.
21
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22