In re: National Nurses United, 47 F.4th 746

In June 2021 OSHA issued a Healthcare Emergency Temporary Standard (Healthcare ETS) addressing COVID-19 protections for healthcare workers.
OSHA later shifted resources to a broader Vaccine ETS; after the Supreme Court curtailed that effort, OSHA said in Dec. 2021 it would withdraw the Healthcare ETS because it could not complete the six-month notice-and-comment process in time, but stated it would pursue a permanent standard and enforce general standards instead.
Before OSHA published the withdrawal, National Nurses United and co-petitioners (the Unions) filed a petition for a writ of mandamus seeking: (1) a permanent standard within 30 days; (2) retention of the Healthcare ETS until a permanent standard issued; and (3) continued enforcement of the Healthcare ETS.
OSHA left the Healthcare ETS on the books while the petition was pending but conceded it was no longer enforcing the ETS.
The court analyzed the petition under the All Writs Act and mandamus standards (jurisdiction in aid of review; a clear, non-discretionary duty to act; and appropriateness of the extraordinary remedy).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Compel OSHA to promulgate a permanent standard within 30 days	OSHA has a statutory duty to adopt a permanent standard after an ETS; six-month deadline makes issuance mandatory	OSHA must complete the mandatory notice‑and‑comment process but retains discretion at its conclusion to promulgate a standard or determine none is necessary	Denied — court has jurisdiction to compel rulemaking completion but OSHA has no clear, non‑discretionary duty to issue a permanent standard (it may conclude no standard should issue)
Compel OSHA to retain the Healthcare ETS (prevent withdrawal)	Retaining the ETS is necessary to preserve judicial review and is statutorily required when grave danger exists	Once an ETS is issued the 60‑day window for pre‑enforcement review runs; retaining the ETS would not protect this court’s jurisdiction	Dismissed for lack of jurisdiction — ordering retention would not aid the court’s current or prospective jurisdiction because pre‑enforcement review time has passed and the ETS serves as the proposed rule regardless of retention
Compel OSHA to enforce the Healthcare ETS	OSHA must enforce standards it issues; non‑enforcement undermines worker protection	Enforcement priorities and decisions are committed to agency discretion and not judicially reviewable	Denied — OSHA’s enforcement decisions are prosecutorial/discretionary and not subject to mandamus

Telecomms. Rsch. & Action Ctr. v. FCC, 750 F.2d 70 (D.C. Cir. 1984) (All Writs Act may compel agency action in aid of appellate jurisdiction)
In re Tennant, 359 F.3d 523 (D.C. Cir. 2004) (All Writs Act does not itself create jurisdiction)
In re Stone, 569 F.2d 156 (D.C. Cir. 1978) (mandamus unavailable when court lacks present or prospective jurisdiction)
In re Core Commc’ns, Inc., 531 F.3d 849 (D.C. Cir. 2008) (mandamus reserved for clear, non‑discretionary duties)
Pub. Citizen Health Rsch. Grp. v. Auchter, 702 F.2d 1150 (D.C. Cir. 1983) (courts can order OSHA to expedite rulemaking in certain circumstances)
UAW v. Donovan, 756 F.2d 162 (D.C. Cir. 1985) (courts may compel OSHA to issue standards so they can exercise review)
Heckler v. Chaney, 470 U.S. 821 (1985) (agency enforcement decisions are presumptively unreviewable prosecutorial discretion)
Norton v. S. Utah Wilderness All., 542 U.S. 55 (2004) (mandamus requires a precise, non‑discretionary duty)
Cheney v. U.S. Dist. Ct., 542 U.S. 367 (2004) (mandamus is an extraordinary remedy)
Arpaio v. Obama, 797 F.3d 11 (D.C. Cir. 2015) (agency resource‑allocation and enforcement prioritization are discretionary)
Kiewit Power Constructors Co. v. Sec’y of Lab., 959 F.3d 381 (D.C. Cir. 2020) (OSHA enforcement discretion in context of standards)