No. 21-60845
United States Court of Appeals for the Fifth Circuit
November 12, 2021
Before JONES, DUNCAN, and ENGELHARDT, Circuit Judges.
Petition for Review of Occupational Safety and Health Administration Emergency Temporary Standard
KURT D. ENGELHARDT, Circuit Judge:
The Occupational Safety and Health Administration (OSHA) “reasonably determined” in June 2020 that an emergency temporary standard (ETS) was “not necessary” to “protect working people from occupational exposure to infectious disease, including COVID-19.” In re AFL-CIO, 2020 WL 3125324, at *1 (D.C. Cir. June 11, 2020). This was not the first time OSHA had done this; it has refused several times to issue ETSs despite legal action urging it do so. See, e.g., In re Int‘l Chem. Workers Union, 830 F.2d 369 (D.C. Cir. 1987) (per curiam). In fact, in its fifty-year history, OSHA has issued just ten ETSs.1 Six were challenged in court; only one survived.2 The reason for the rarity of this form of emergency action is
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 anticipated4 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
unvaccinated to “undergo [weekly] COVID-19 testing and wear a face covering at work in lieu of vaccination.”
On the afternoon of the Mandate‘s publication, a diverse group of petitioners (including covered employers, States, religious groups, and individual citizens) moved to stay and permanently enjoin the mandate in federal courts of appeals across the nation. Finding “cause to believe there are grave statutory and constitutional issues with the Mandate,” we intervened and imposed a temporary stay on OSHA‘s enforcement of the Mandate. For ease of judicial review, and in light of the pressing need to act immediately, we consolidated our court‘s petitions under the case number captioned above.
Many of the petitioners are covered private employers within the geographical boundaries of this circuit.5 Their standing6 to sue is obvious—the Mandate imposes a financial burden upon them by deputizing their participation in OSHA‘s regulatory scheme, exposes them to severe financial risk if they refuse or fail to comply, and threatens to decimate their workforces (and business prospects) by forcing unwilling employees to take their shots, take their tests, or hit the road.
The petitioners seek a stay—and ultimately a permanent injunction—of the Mandate‘s enforcement pending full judicial review of the Mandate. We address their request for a stay today.7
II.
The “traditional stay factors . . . govern a request for a stay pending judicial review.” Nken v. Holder, 556 U.S. 418, 426 (2009). Under the traditional stay standard, a court considers four factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Hilton v. Braunskill, 481 U.S. 770, 776 (1987).
Each of these factors favors a stay here.
We first consider whether the petitioners’ challenges to the Mandate are likely to succeed on the merits. For a multitude of reasons, they are.
We begin by stating the obvious. The Occupational Safety and Health Act, which created OSHA, was enacted by Congress to assure Americans “safe and healthful working conditions and to preserve our human resources.” See
On the dubious assumption that the Mandate does pass constitutional muster—which we need not decide today9—it is nonetheless fatally flawed on its own terms. Indeed, the Mandate‘s strained prescriptions combine to make it the rare government pronouncement that is both overinclusive (applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) and underinclusive (purporting to save employees with 99 or more coworkers from a “grave danger” in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same
threat). The Mandate‘s stated impetus—a purported “emergency” that the entire globe has now endured for nearly two years,10 and which OSHA itself spent nearly two months responding to11—is unavailing as
1.
After the President voiced his displeasure with the country‘s vaccination rate in September,12 the Administration pored over the U.S. Code in search of authority, or a “work-around,”13 for imposing a national
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.”
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
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.
2.
Thus, as
(a)
In its brief, Texas makes a compelling argument that
threatening to a vast majority of employees into a neighboring phrase connoting toxicity and poisonousness is yet another transparent stretch. Other cases involving OSHA (though not ETSs per se) shed further light on the intended meaning of these terms. See, e.g., UAW v. OSHA, 938 F.2d 1310, 1314 (D.C. Cir. 1991). See generally Indus. Union Dep‘t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607 (1980). Any argument OSHA may make that COVID-19 is a “new hazard[]” would directly contradict OSHA‘s prior representation to the D.C. Circuit that “[t]here can be no dispute that COVID-19 is a recognized hazard.” See OSHA D.C. Circuit Brief at 25 (emphasis added).
(b)
A natural first step in enacting a lawful ETS is to show that employees covered by the ETS are in fact exposed to the dangerous substances, agents, or hazards at issue—here, COVID-19. See, e.g., Int‘l Chem. Workers, 830 F.2d at 371 (noting OSHA‘s stated view “that a finding of ‘grave danger’ to support an ETS be based upon exposure in actual levels found in the workplace“). As it pertains to the vast majority of private employees covered by the Mandate, however, OSHA fails to meet this threshold burden. In defending the Mandate before this court, the Government credits OSHA with “describ[ing] myriad studies showing workplace [COVID-19] ‘clusters’ and ‘outbreaks’ and other significant ‘evidence of workplace transmission’ and ‘exposure.‘” See Resp‘ts’ Opp‘n to Emergency Stay Mot. at 8. But this misses the mark, as OSHA is required to make findings of exposure—or at least the presence of COVID-19—in all covered workplaces.
Of course, OSHA cannot possibly show that every workplace covered by the Mandate currently has COVID-positive employees, or that every industry covered by the Mandate has had or will have “outbreaks.” As
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
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
critical to note that the Mandate makes no serious attempt to explain why OSHA and the President himself17 were against vaccine mandates before they were for one here. See, e.g., Occupational Exposure to Bloodborne Pathogens,
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
where any amount of deference would make a bit of difference. Int‘l Chem. Workers, 830 F.2d at 371.
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
permanent rule) may undermine worker protection by permanently mandating precautions that later prove to be inefficacious. . . . [A]n ETS could only enshrine broad legal standards that are already in place or direct employers to develop COVID-19 response plans specific to their businesses, something employers are already doing. Such a step would be superfluous at best and could be counterproductive to ongoing state, local, and private efforts. . . . Additionally, employers may choose any effective method to abate a recognized hazard under the general duty clause. Contrary to AFL-CIO‘s argument, this flexibility is likely to improve worker safety, because employers must choose a means of abatement that eliminates the hazard or materially reduces it to the extent feasible.“). OSHA itself admitted that “an ETS once issued could very well become ineffective or counterproductive, as it may be informed by incomplete or ultimately inaccurate information.” Id. at 30, 32–33 (acknowledging further that “[a]dequate safeguards for workers could differ substantially based on geographic location, as the pandemic has had dramatically different impacts on different parts of the country. State and local requirements and guidance on COVID-19 are thus critical to employers in determining how to best protect workers, and OSHA must retain flexibility to adapt its advice regarding incorporation of such local guidance, where appropriate. . . . [A]n ETS meant to broadly cover all workers with potential exposure to COVID-19—effectively all workers across the country—would have to be written at such a general level that it would risk providing very little assistance at all“).
In light of this immense complexity, one might naturally ask the Agency—is this situation truly amenable to a one-size-fits-all Mandate? The likely answer may be why OSHA has in the past “determined that the best approach for responding to
than promulgating a rigid set of requirements for all employers in all industries based on limited information.” See Sweatt Letter at 2. In sum, as OSHA itself has previously acknowledged, an ETS appears to be a “poorly-suited approach for protecting workers against [COVID-19] because no standard that covers all of the Nation‘s workers would protect all those workers equally.” See id. at 9.
At the same time, the Mandate is also underinclusive. The most vulnerable worker in America draws no protection from the Mandate if his company employs 99 workers or fewer. The reason why? Because, as even OSHA admits, companies of 100 or more employers will be better able to administer (and sustain) the Mandate. See
(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
(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
it is within the police power of a state to provide for compulsory vaccination“); Jacobson v. Massachusetts, 197 U.S. 11, 25–26 (1905) (similar). The Mandate, however, commandeers U.S. employers to compel millions of employees to receive a COVID-19 vaccine or bear the burden of weekly testing.
Second, concerns over separation of powers principles cast doubt over the Mandate‘s assertion of virtually unlimited power to control individual conduct under the guise of a workplace regulation. As Judge Duncan points out, the major questions doctrine confirms that the Mandate exceeds the bounds of OSHA‘s statutory authority. Congress must “speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.” Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014) (cleaned up). The Mandate derives its authority from an old statute employed in a
novel manner,20 imposes nearly $3 billion in compliance costs, involves broad medical considerations that lie outside of OSHA‘s core competencies, and purports to definitively resolve one of today‘s most hotly debated political issues. Cf. MCI Telecomms. Corp. v. AT&T, 512 U.S. 218, 231 (1994) (declining to hold that the FCC could eliminate telecommunications rate-filing requirements); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159–60 (2000) (declining to hold that the FDA could regulate cigarettes); Gonzales v. Oregon, 546 U.S. 243, 262 (2006) (declining to allow DOJ to ban physician-assisted
At the very least, even if the statutory language were susceptible to OSHA‘s broad reading—which it is not—these serious constitutional concerns would counsel this court‘s rejection of that reading. Jennings v. Rodriguez, 138 S. Ct. 830, 836 (2018).
* * *
Accordingly, the petitioners’ challenges to the Mandate show a great likelihood of success on the merits, and this fact weighs critically in favor of a stay.
B.
It is clear that a denial of the petitioners’ proposed stay would do them irreparable harm. For one, the Mandate threatens to substantially burden the
liberty interests21 of reluctant individual recipients put to a choice between their job(s) and their jab(s). For the individual petitioners, the loss of constitutional freedoms “for even minimal periods of time . . . unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.“).
Likewise, the companies seeking a stay in this case will also be irreparably harmed in the absence of a stay, whether by the business and financial effects of a lost or suspended employee, compliance and monitoring costs associated with the Mandate, the diversion of resources necessitated by the Mandate, or by OSHA‘s plan to impose stiff financial penalties on companies that refuse to punish or test unwilling employees. The Mandate places an immediate and irreversible imprint on all covered employers in America, and “complying with a regulation later held invalid almost always produces the irreparable harm of nonrecoverable compliance costs.” See 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)).
The States, too, have an interest in seeing their constitutionally reserved police power over public health policy defended from federal overreach.
C.
In contrast, a stay will do OSHA no harm whatsoever. Any interest OSHA may claim in enforcing an unlawful (and likely unconstitutional) ETS is illegitimate. Moreover, any abstract “harm” a stay might cause the Agency
pales in comparison and importance to the harms the absence of a stay threatens to cause countless individuals and companies.
D.
For similar reasons, a stay is firmly in the public interest. From economic uncertainty to workplace strife, the mere specter of the Mandate has contributed to untold economic upheaval in recent months. Of course, the principles at stake when it comes to the Mandate are not reducible to dollars and cents. The public interest is also served by maintaining our constitutional structure and maintaining the liberty of individuals to make intensely personal decisions according to their own
* * *
The Constitution vests a limited legislative power in Congress. For more than a century, Congress has routinely used this power to delegate policymaking specifics and technical details to executive agencies charged with effectuating policy principles Congress lays down. In the mine run of cases—a transportation department regulating trucking on an interstate highway, or an aviation agency regulating an airplane lavatory—this is generally well and good. But health agencies do not make housing policy, and occupational safety administrations do not make health policy. Cf. Ala. Ass‘n of Realtors, 141 S. Ct. at 2488–90. In seeking to do so here, OSHA runs afoul of the statute from which it draws its power and, likely, violates the constitutional structure that safeguards our collective liberty.
For these reasons, the petitioners’ motion for a stay pending review is GRANTED. Enforcement of the Occupational Safety and Health Administration‘s “COVID-19 Vaccination and Testing; Emergency
Temporary Standard”22 remains STAYED pending adequate judicial review of the petitioners’ underlying motions for a permanent injunction.23
In addition, IT IS FURTHER ORDERED that OSHA take no steps to implement or enforce the Mandate until further court order.
STUART KYLE DUNCAN, Circuit Judge, concurring:
In addition to the many reasons ably identified by Judge Engelhardt‘s opinion, I underscore one reason why these challenges to OSHA‘s unprecedented mandate are virtually certain to succeed.
Courts “expect Congress to speak clearly when authorizing an agency to exercise powers of ‘vast economic and political significance.‘” Ala. Ass‘n of Realtors v. Dep‘t of Health & Human Servs., 141 S. Ct. 2485, 2489 (2021) (quoting Utility Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014)). OSHA‘s rule reaches “two-thirds of all private-sector workers in the nation.”
Whether Congress could enact such a sweeping mandate under its interstate commerce power would pose a hard question. See NFIB v. Sebelius, 567 U.S. 519, 549–61 (2012). Whether OSHA can do so does not.
I concur in granting a stay.