Application — Job Creators Network, et al., Applicants v. Department of Labor, Occupational Safety and Health Administration, et al.

No. A-____

_________________________

IN THE SUPREME COURT OF THE UNITED STATES

_________________________

IN RE: MCP NO. 165, OCCUPATIONAL SAFETY AND HEALTH

ADMINISTRATION, INTERIM FINAL RULE: COVID-19 VACCINATION AND

TESTING; EMERGENCY TEMPORARY STANDARD 86 FED. REG. 61402.

JOB CREATORS NETWORK, INDEPENDENT BAKERS ASSOCIATION,

LAWRENCE TRANSPORTATION COMPANY, GUY CHEMICAL COMPANY,

RABINE GROUP OF COMPANIES, PAN-O-GOLD BAKING COMPANY, TERRI

MITCHELL, WATERBLASTING, LLC,

Applicants,

v.

OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION, U.S.

DEPARTMENT OF LABOR, MARTIN J. WALSH, Secretary of Labor,

DOUGLAS L. PARKER, Assistant Secretary of Labor for Occupational

Safety and Health Administration,

Respondents.

_________________________

EMERGENCY APPLICATION FOR STAY OF AGENCY STANDARD

PENDING THE DISPOSITION BY THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT OF A PETITION FOR REVIEW

AND ANY FURTHER PROCEEDINGS IN THIS COURT

_________________________

Jonathan Berry

Counsel of Record

BOYDEN GRAY & ASSOCIATES PLLC

801 17th Street NW, Suite 350

Washington, DC 20006

(202) 955-0618

berry@boydengrayassociates.com

Counsel for Applicants

TABLE OF CONTENTS

INTRODUCTION .......................................................................................................... 1

OPINIONS BELOW ...................................................................................................... 2

JURISDICTION............................................................................................................. 2

STATUTORY PROVISIONS ......................................................................................... 3

STATEMENT ................................................................................................................. 3

I.

COVID and the Mandate............................................................................... 3

II.

Applicants ...................................................................................................... 5

ARGUMENT .................................................................................................................. 9

I.

Applicants Are Likely to Succeed on the Merits ........................................ 11

A.

Prior Emergency Temporary Standards ............................................... 11

B.

OSHA Lacked Authority to Issue the Mandate .................................... 12

1.

2.

C.

The Mandate Violates Multiple Clear-Statement Doctrines ..... 12

The Mandate Violates the Nondelegation Doctrine ................... 16

Even if OSHA Has Authority, an ETS Is Inappropriate ...................... 18

II.

Applicants Will Suffer Irreparable Injury in the Absence of a Stay ......... 21

III.

The Equities and Public Interest Strongly Favor a Stay ........................... 26

CONCLUSION............................................................................................................. 29

Exhibit 1

Exhibit 2

Exhibit 3

Exhibit 4

Exhibit 5

Exhibit 6

In re: MCP No. 165, ___ F. 4th ___ (6th Cir. 2021).

BST Holdings, LLC v. OSHA, 17 F.4th 604 (5th Cir. 2021).

BST Holdings, LLC v. OSHA, No. 21-60845, 2021 WL 5166656 (5th

Cir. Nov. 6, 2021).

Affidavits Submitted to Sixth Circuit.

Statutory Addendum.

COVID-19 Vaccination and Testing Emergency Temporary Standard,

86 Fed. Reg. 61,402 (Nov. 5, 2021).

i

TABLE OF AUTHORITIES

Page(s)

CASES

Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485 (2021).............................. 14, 15, 23, 26

Am. Petroleum Institute v. OSHA, 581 F.2d 493 (5th Cir. 1978) .............................. 12

Asbestos Information Ass’n v. OSHA,

727 F.2d 415 (5th Cir. 1984) ........................................................ 12, 16, 17, 18, 20

Beniske v. Lamone, 138 S. Ct. 1942 (2018) ................................................................. 27

BST Holdings, LLC v. OSHA, 17 F.4th 604 (5th Cir. 2021) ...... 2, 5, 16, 19, 20, 21, 22

Dry Color Mfrs. Ass’n, Inc. v. Dep’t of Labor, 486 F.2d 98 (3d Cir. 1973) ........... 12, 19

Edison Elec. Institute v. OSHA, 849 F.2d 611 (D.C. Cir. 1988) ................................ 11

Fla. Peach Growers Ass’n v. U.S. Dep’t of Labor,

489 F.2d 120 (5th Cir. 1974) ..................................................................... 12, 18, 20

Gundy v. United States, 139 S. Ct. 2116 (2019) .................................................. 16, 17

In re Am. Fed’n of Lab. & Cong. of Indus. Organizations, No. 20-1158, 2020

WL 3125324, at *1 (D.C. Cir. June 11, 2020) ........................................................ 18

In re: MCP No. 165, No. 21-7000, ___ F. 4th ___, 2021 WL ______ (6th Cir.

Dec. 15, 2021)............................................................................................................ 5

Industrial Union Dep’t, AFL-CIO v. Am. Petroleum Inst.,

448 U.S. 607 (1980) ....................................................................... 10, 13, 14, 15, 19

Jacobson v. Massachusetts, 197 U.S. 11 (1905) ......................................................... 15

Maryland v. King, 569 U.S. 435 (2009) ...................................................................... 24

Nken v. Holder, 556 U.S. 418, (2009) ..................................................................... 9, 26

Precision Instrument Mfg. Co. v. Auto Maint. Mach. Co., 324 U.S. 806 (1945) ........ 27

Taylor Diving Salvage v. U.S. Dept. of Labor, 537 F.2d 819 (5th Cir. 1976) ........... 12

Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994) .............................................. 22

Util. Air Regul. Grp. v. EPA, 573 U.S. 302 (2014) ............................................ 9, 13, 14

ii

Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (2001) ............................................. 17

STATUTES AND REGULATIONS

28 U.S.C. § 1254 ............................................................................................................. 2

28 U.S.C. § 1651 ............................................................................................................ 2

28 U.S.C. § 2112 ............................................................................................................ 5

29 U.S.C. § 655 ........................................................................................... 11, 14, 17, 20

29 C.F.R. § 1903.15 ....................................................................................................... 4

Fed. R. Civ. P. 65(d)(2) ................................................................................................ 31

COVID-19 Vaccination and Testing Emergency Temporary Standard, 86 Fed.

Reg. 61,402 (Nov. 5, 2021) ............................................1, 3, 4, 15, 16, 19, 21, 24, 27

Occupational Exposure to COVID-19; Emergency Temporary Standard, 86

Fed. Reg. 32,376-01 (June 21, 2021) ..................................................................... 18

OTHER AUTHORITIES

White House, Remarks by President Biden on Fighting the COVID-19

Pandemic, Sept. 9, 2021, https://www.whitehouse.gov/briefingroom/speeches-remarks/2021/09/09/remarks-by-president-biden-onfighting-the-covid-19-pandemic-3/ ........................................................................... 3

Morgan Chalfant, White House: Move Forward with Mandate Despite Court

Freeze, THE HILL, Nov. 8, 2021,

https://thehill.com/homenews/administration/580586-whits-house-moveforward-with-mandate-despite-court-freeze .......................................................... 25

Morgan Chalfant, White House Tells Businesses to Move Forward with

Vaccine Mandate, THE HILL, Nov. 18, 2021,

https://thehill.com/homenews/administration/582232-white-house-tellsbusinesses-to-move-forward-with-vaccine-mandate ............................................. 25

Press Briefing by Press Secretary Jen Psaki, WHITE HOUSE, Nov. 18, 2021,

https://www.whitehouse.gov/briefing-room/pressbriefings/2021/11/18/press-briefing-by-press-secretary-jen-psakinovember-18-2021/ ................................................................................................. 25

iii

Spencer Kimball, Business Groups Ask White House to Delay Biden Covid

Vaccine Mandate Until After the Holidays, CNBC,

https://www.cnbc.com/2021/10/25/businesses-ask-white-house-to-delaybiden-covid-vaccine-mandate-until-after-holidays.html/...................................... 28

iv

To the Honorable Brett M. Kavanaugh, Associate Justice of the United States

and Circuit Justice for the Sixth Circuit:

In accordance with Supreme Court Rule 22 and 23 and the All Writs Act, 28

U.S.C. § 1651, applicants Job Creators Network, Independent Bakers Association,

Lawrence Transportation Company, Guy Chemical Company, Rabine Group of

Companies, Pan-O-Gold Baking Company, Terri Mitchell, and Waterblasting, LLC

(“Applicants”) respectfully request an immediate stay of respondent Occupational

Safety & Health Administration’s emergency temporary standard (“Mandate”),

COVID-19 Vaccination and Testing Emergency Temporary Standard, 86 Fed. Reg.

61,402 (Nov. 5, 2021), pending the disposition of Applicants’ petition for review

currently pending before the United States Court of Appeals for the Sixth Circuit

and pending any further proceedings in this Court.

INTRODUCTION

Applicants represent a collection of small businesses and organizations that

challenge the Occupational Safety and Health Administration’s issuance of an

emergency temporary standard (“ETS”) requiring that every company with 100 or

more employees either forcibly vaccinate its employees, forcibly test them every

week, or fire them—subject to steep fines for violations.

Only nine ETSs were issued before 2021, and of the six that were challenged,

only one fully survived—demonstrating the incredible burden OSHA faces. As

eleven circuit judges—three in the Fifth Circuit and eight in the Sixth Circuit—

have concluded, Applicants are likely to succeed on the merits of their claims

because the Mandate violates multiple “clear-statement” rules like the major1

questions doctrine, runs perilously close to illegal delegation, and has numerous

other fatal flaws.

Applicants also demonstrate irreparable harm because they will permanently

lose clients and reputation as a result of losing workers who immediately quit and

join smaller companies rather than be vaccinated or tested weekly. The equities and

public interest also favor Applicants. The status quo (before the most-recent

decision below) was that the Mandate has been stayed effectively ab initio.

Moreover, Applicants provide critical food production, delivery, and supply chain

services for the country, which will suffer tremendously as the Mandate suddenly

springs into life.

OPINIONS BELOW

The Sixth Circuit’s three-judge panel order (a 2-1 vote with Judge Larsen

dissenting) dissolving the Fifth Circuit’s stay has not yet been reported. The Fifth

Circuit’s order granting a stay is reported at BST Holdings, LLC v. OSHA, 17 F.4th

604 (5th Cir. 2021). The Fifth Circuit’s order granting an administrative stay is

available at BST Holdings, LLC v. OSHA, No. 21-60845, 2021 WL 5166656 (5th Cir.

Nov. 6, 2021). The Sixth Circuit’s internal operating procedures apparently do not

authorize en banc petitions on such matters. See Sixth Circ. I.O.P. 35(g)–(h).

JURISDICTION

The Circuit Justice has jurisdiction over this application pursuant to 28

U.S.C. § 1254(1) and has authority to grant Applicants relief under the All Writs

Act, 28 U.S.C. § 1651(a).

2

STATUTORY PROVISIONS

Pertinent provisions are reprinted in the Statutory Addendum. See Ex. 5.

STATEMENT

I.

The Mandate and Proceedings Below.

COVID has presented enormous challenges to all Americans. But after

tremendous sacrifices, the nation has turned the page. Despite this, on September

9, 2021, President Biden decided that there is such an urgent, new emergency in

the form of COVID transmission in the workplace that he ordered OSHA to issue an

ETS mandating that nearly every company in the country with 100 or more

employees either forcibly vaccinate its employees, forcibly test them every week, or

fire them. White House, 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-by-president-biden-on-fighting-the-covid-19-pandemic3/. This mandate would “affect about 100 million Americans,” or “two thirds of all

workers.” Id.

After a substantial delay, OSHA finally issued the Mandate in accordance

with President Biden’s command. COVID-19 Vaccination and Testing Emergency

Temporary Standard, 86 Fed. Reg. 61,402, 61,549–61,550 (Nov. 5, 2021) (Ex. 6). It

became binding on November 5, 2021. See 29 U.S.C. § 655(c).

The Mandate requires all employers of 100 or more employees to “develop,

implement, and enforce a mandatory COVID-19 vaccination policy” and requires

any workers who remain unvaccinated to “undergo [weekly] COVID-19 testing and

wear a face covering at work in lieu of vaccination.” 86 Fed. Reg. at 61,402. It will

3

apply to roughly 80 million workers, of whom OSHA estimated 32 million were not

currently vaccinated, 22 million of whom OSHA expects will get vaccinated against

their wishes because of the Mandate. Id. at 61,435, 61,472.

Under the emergency rule, the employer must verify “the vaccination status

of each employee,” “maintain a record of each employee’s vaccination status,” and

“preserve acceptable proof of vaccination.” Id. at 61,552. For employees who opt not

to get vaccinated, the employer must require a test every seven days, one that

neither the Federal Government nor the employer must pay for and one that the

employees may not take without the supervision of an authorized person. Id. at

61,530, 61,532, 61,551, 61,553. Unvaccinated employees who do not comply must be

“removed from the workplace.” Id. at 61,532. Unvaccinated employees must wear

masks at work with few exceptions. Id. at 61,553. The testing and masking

requirements do not apply to vaccinated employees. Id. Employers who violate the

Act face penalties imposed by OSHA: up to $13,653 for each violation and up to

$136,532 for each willful violation. 29 C.F.R. § 1903.15(d).

Although the Mandate ostensibly goes into full effect on January 4, 2022,

OSHA “strongly encourages employers to implement the required measures to

support employee vaccination as soon as practicable.” Id. at 61,549–61,550

(emphasis added). The Mandate says it is “critical[ly] importan[t]” to “implement[]

the requirements in this ETS, including the recordkeeping and reporting provisions,

as soon as possible,” id. at 61,505, and “it is essential that remediation efforts at a

workplace be undertaken immediately,” id. at 61,545.

4

On November 4, 2021, Applicants filed suit in the Eighth Circuit and sought

a stay of the Mandate, attaching affidavits demonstrating the imminent and

irreparable harm that would befall them if the Mandate were not stayed. See Job

Creators Network v. U.S. Dep’t of Labor, No. 21-3491 (8th Cir.). During this time, in

a response to petitions filed in the Fifth Circuit, that court issued an administrative

stay and then a stay pending review of the Mandate. BST Holdings, LLC v. OSHA,

17 F.4th 604 (5th Cir. 2021) (Ex. 2).

All of these cases (as well as ones in other circuits) were later transferred to

the Sixth Circuit pursuant to the lottery process in 28 U.S.C. § 2112.

Applicants were among those who sought initial en banc hearing, which the

Sixth Circuit denied in an evenly divided vote, with Chief Judge Sutton writing a

lengthy dissent (joined by seven other judges) explaining not only why the court

should hear the matter en banc but also why the Mandate is illegal. In re: MCP No.

165, No. 21-7000, ___ F. 4th ___, 2021 WL 5914024 (6th Cir. Dec. 15, 2021). The

government also sought to dissolve the Fifth Circuit’s stay, and a three-judge panel

of the Sixth Circuit granted the government’s motion by a 2-1 vote, with Judge

Larsen dissenting. Ex. 1. The Sixth Circuit’s internal operating procedures

apparently do not authorize en banc petitions challenging rulings on motions for

stays of agency rules. See Sixth Circ. I.O.P. 35(g)–(h).

II.

Applicants

Job Creators Network is a nonpartisan membership organization whose

mission is to educate employees of Main Street America and protect the 85 million

5

people who depend on the success of small businesses. Affidavit of Alfredo Ortiz, Ex.

4, ¶¶ 2–5.1 Its members will suffer tremendous harm from the Mandate. See id.,

¶¶ 6–11.

Independent Bakers Association is national trade association of over 200

family-owned wholesale bakeries and allied industry trades. Affidavit of Nicholas

Pyle, Ex. 4, ¶¶ 2–4. IBA’s affidavit explains in detail how its members were deemed

“essential” during lockdowns because of their critical role in feeding the country—

but these members are facing dramatic worker shortages already, and the Mandate

is expected to cause 20–30% of employees to leave, which will severely “disrupt

retail trade patterns, exacerbate fast food supply chain issues and increase the food

insecurity for the nation's most nutritionally at risk.” Id., ¶¶ 5–10. IBA has

standing through its members, one of which has submitted an affidavit explaining

how the Mandate will drastically worsen an already-critical worker shortage for

every link in its production and supply chain, leading to severe reputational and

public harms, including the communities supported by the company’s wages.

Affidavit of Mike McKee, Ex. 4, ¶¶ 10–13.

Lawrence Transportation Company is a refrigerated truckload carrier in

Rochester, Minnesota, with over 100 employees and thus subject to the Mandate.

Affidavit of Eric Lawrence, Ex. 4, ¶¶ 2–3. The company was deemed “essential”

during the COVID lockdowns, id., ¶ 9, and has encouraged its employees to get

vaccinated, id., ¶ 2. The Mandate will cause irreparable harm because Lawrence

1 All affidavits cited herein were presented to the Sixth Circuit below. See ECF No. 98 (6th Cir. Nov.

23, 2021).

6

Transportation is already facing a severe truck driver shortage. Id., ¶ 4. These

drivers and the mechanics who repair the trucks require specialized licenses and

training. Id. Because of this, Lawrence Transportation “simply cannot hire more

employees and have them start quickly.” Id.

Approximately 10–15% of Lawrence Transportation’s workforce “would

rather walk off the job than be forced to get a vaccine or undergo weekly testing,”

and there is an incentive to do this sooner rather than later. Id., ¶ 5. These workers

“cannot be replaced at any point in the near future” and would have a “devastating”

effect on the company. Id., ¶¶ 6–7. Deliveries will be “delayed or canceled, resulting

in severe financial and reputational damages for the Company, as well as a likely

ripple effect of losing business to smaller trucking companies.” Id., ¶ 7.

The Company “would likely have to save costs by laying off non-drivers like

office employees,” who “are almost all vaccinated.” Id. This means “the mandate

would result in vaccinated people losing their jobs.” Id. (emphasis added). The

Mandate also imposes irreparable logistical harms, as drivers are on the road “for 7

to 10 days at a time, making it nearly impossible to get tested weekly.” Id., ¶ 10.

The Mandate is designed to “force[] those drivers either to get vaccinated, or quit.”

Id.

The general public would also suffer because Lawrence Transportation

delivers groceries that must be refrigerated. Id., ¶ 9. “[T]hose deliveries will not be

made, and people will not be able to get food deliveries to their grocery stores.” Id.

7

Guy Chemical Company LLC is a manufacturer in Somerset County,

Pennsylvania, with over 160 employees, and thus is subject to the Mandate.

Affidavit of Guy Berkebile, Ex. 4, ¶¶ 1–4. Guy Chemical was deemed “essential”

during the pandemic lockdowns, due to its work producing materials for household

and construction products. Id., ¶ 9. Guy Chemical is already facing an intense

worker shortage, and its employees typically must have extensive training

(required, ironically, by OSHA) and specialized knowledge that cannot be learned

quickly, and—critically—a majority of employees at the Company would refuse to

comply with the Mandate because Guy Chemical has attracted workers who have

left other companies with onerous vaccine and masking requirements. Id., ¶¶ 6–7. If

even 25% of Guy Chemical’s workers refuse to show up, the Company would be

unable to complete orders, resulting not only in lost business but also reputational

damages. Id., ¶ 8. The Mandate also imposes irreparable harm in the form of

logistics: the onerous testing requirements will have the effect of forcing companies

to abandon testing and mandate the vaccine—“[t]here is no practical choice.” Id., ¶

10.

The Rabine Group of Companies have over 300 employees, including over

100 just at Pipe View L.L.C. These companies perform critical infrastructure

repairs for damaged roofs, roads, HVAC systems, and commercial doors and docks,

as well as snow removal—and, like the other Applicants, are already suffering from

severe worker shortages even without the estimated 20% of workers who will leave

because of the Mandate. Affidavit of Gary Rabine, Ex. 4, ¶¶ 2–6. These projects

8

must be done immediately or customers may face legal liability and physical

dangers, but the Mandate will prevent the Group’s companies from meeting

timeliness obligations, causing tremendous public harm, as well as critical business

and reputational damages. Id., ¶¶ 7–11.

As Job Creators Network CEO Alfredo Ortiz states, these companies

represent only “the tip of the iceberg.” Ortiz Affidavit, Ex. 4, ¶ 11. Thousands of

other companies are in the same situation.

Terri Mitchell is the Administrations Manager at Guy Chemical and is

determined not to receive the vaccine because she previously had the coronavirus

and has the confirmed presence of SARS-COV-2 antibodies. Affidavit of Terri

Mitchell, Ex. 4, ¶¶ 2, 4–5. She also refuses to subject herself to the physical harms

and indignity of involuntary weekly testing. Id., ¶ 5. She would rather lose her

position than comply with the Mandate, and—as a result of her role at the

company—knows that “a majority of employees at Guy Chemical feel the same

way.” Id., ¶ 6.

ARGUMENT

The traditional stay factors all support granting relief to Applicants. See

Nken v. Holder, 556 U.S. 418, 426–27 (2009).

Applicants are likely to prevail on the merits for several reasons. First, the

Mandate violates multiple “clear-statement” doctrines, most notably the majorquestions doctrine, which states that 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). But there is not the slightest hint that

9

Congress gave OSHA the power to issue emergency orders covering 84 million

Americans and resulting in compelled vaccination of over 22 million of them.

This Court has previously warned OSHA about issuing such edicts: “In the

absence of a clear mandate in the [OSH] Act, it is unreasonable to assume that

Congress intended to give the Secretary the unprecedented power over American

industry that would result from the Government’s view.” Industrial Union Dep’t,

AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 645, 651 (1980) (plurality). The

Court even warned OSHA against abusing ETSs just like the Mandate: “Congress

repeatedly expressed its concern about allowing the Secretary to have too much

power over American industry,” and thus Congress “narrowly circumscribed the

Secretary’s power to issue temporary emergency standards.” Id. (emphasis added).

Shockingly, the majority opinion below fails to address these holdings.

Second, the Mandate violates the nondelegation doctrine, which prohibits

Congress from transferring legislative powers carte blanche to an executive agency.

Third, even if OSHA did have the power to issue the Mandate, there is no

unforeseen emergency necessitating a one-size-fits-all ETS, especially when the

Mandate will severely disrupt essential services and—in a cruel twist—result in

companies laying off vaccinated workers to stay solvent.

Applicants have also demonstrated irreparable injury and favorable equities.

Applicants are small businesses deemed “essential” during lockdowns and have

struggled to survive the last two years. As the attached detailed affidavits make

clear, these companies face the distinct prospect that a substantial number of

10

employees—a majority in some cases—will walk off the job rather than comply with

the Mandate. Critically, they have every incentive to do this immediately rather

than wait for the Mandate’s deadlines to kick in. This will trigger a cascade of

irreparable injuries as companies are unable to satisfy work orders, leading to lost

clients, damaged reputation, and the threat of shutting their doors. After over a

month of dormancy, the Mandate was suddenly sprung back into life by the Sixth

Circuit, greatly upending the status quo and threatening imminent chaos.

The public will suffer tremendously, too. Applicants provide critical supplychain services like food production, grocery store food deliveries, and emergency

repairs for buildings and roads. By forcing those companies to operate without a

sizable part of their workforce, the Mandate will cause immediate shortages at

grocery stores, shortages of household and commercial goods, and languishing

critical infrastructure failures.

I.

Applicants Are Likely to Succeed on the Merits.

A.

Prior Emergency Temporary Standards

The Occupational and Health Safety Act of 1970 (“OSH Act”) provides the

Secretary of Labor the incredible power to issue ETSs that are immediately

effective upon publication in the Federal Register, without having to comply with

any of the requirements of the Administrative Procedure Act. 29 U.S.C. § 655(c).

The Secretary must determine, inter alia, that the covered “employees are exposed

to grave danger from exposure to substances or agents determined to be toxic or

physically harmful or from new hazards.” Id. The Secretary has delegated this

11

authority to the Assistant Secretary for Occupational Safety and Health. Edison

Elec. Institute v. OSHA, 849 F.2d 611, 614 (D.C. Cir. 1988).

This is an “extraordinary power,” Fla. Peach Growers Ass’n v. U.S. Dep’t of

Labor, 489 F.2d 120, 129 (5th Cir. 1974), and represents “OSHA’s most dramatic

weapon in its enforcement arsenal.” Asbestos Information Ass’n v. OSHA, 727 F.2d

415, 426 (5th Cir. 1984). This weapon must be “delicately exercised, and only in

those emergency situations which require it.” Peach Growers, 489 F.2d at 129–30.

Before 2021, OSHA had issued fewer than 10 ETSs. Of the six that were

challenged, five (83.3%) were fully or partially vacated or stayed, Asbestos, 727 F.2d

at 426; Am. Petroleum Institute v. OSHA, 581 F.2d 493, 503 (5th Cir. 1978), aff’d,

448 U.S. 607 (1980); Taylor Diving Salvage v. U.S. Dept. of Labor, 537 F.2d 819, 821

(5th Cir. 1976); Peach Growers, 489 F.2d at 129; Dry Color Mfrs. Ass’n, Inc. v. Dep’t

of Labor, 486 F.2d 98 (3d Cir. 1973).

This

lousy

batting

average—even

when

defending

limited

ETSs—

demonstrates the extraordinarily high burden OSHA must satisfy. As demonstrated

next, the Mandate does not survive this scrutiny.

B.

OSHA Lacked Authority to Issue the Mandate.

Applicants are likely to succeed on the merits of their challenge to the

Mandate for several reasons.

1.

The

Mandate

Doctrines.

Violates

Multiple

Clear-Statement

The Mandate represents an unprecedented assertion of power by OSHA,

regulating far more than any prior ETS in OSHA’s 50 years: 84 million Americans

12

(32 million currently unvaccinated), in every industry, representing almost 2/3 of all

workers across the entire country. Its dictates are also unprecedented: OSHA is

press-ganging private companies into being vaccination police who forcibly inject or

test their employees—or fire them. For the first time in history, OSHA seeks to

regulate the citizenry itself.

Under the major-questions doctrine, “[w]hen an agency claims to discover in

a long-extant statute an unheralded power to regulate a significant portion of the

American economy, we typically greet its announcement with a measure of

skepticism.” Util. Air Regul. Grp. v. E.P.A., 573 U.S. 302, 324 (2014). “We expect

Congress to speak clearly if it wishes to assign to an agency decisions of vast

economic and political significance.” Id.

The Mandate fails this doctrine because there is no “clear statement” in

§ 655(c) giving OSHA such sweeping powers over the nation’s economy, nor to

mandate vaccination or intrusive weekly testing for 32 million people, nor to expand

its purview beyond the workplace.

Only once before has OSHA attempted anything close to the Mandate—and

this Court rejected it and forewarned OSHA from trying again. In the famous

“benzene case,” OSHA had issued a permanent standard pursuant to § 655,

governing low levels of benzene, under such a broad theory of workplace harm that

OSHA could effectively regulate substantial portions of the nation’s industry.

Industrial Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 623 (1980)

(“API”). The Court rejected OSHA’s power grab: “In the absence of a clear mandate

13

in the [OSH] Act, it is unreasonable to assume that Congress intended to give the

Secretary the unprecedented power over American industry that would result from

the Government’s view” of § 655.” Id. at 645 (plurality).

The government’s

argument “would in turn justify pervasive regulation limited only by the constraint

of feasibility.” Id. The Court also criticized OSHA for “apply[ing] the same limit to

all [industries], largely as a matter of administrative convenience.” Id. at 650.

Significantly, the Court made these statements in the context of a permanent

standard while noting that OSHA’s ETS authority is even more “narrowly

circumscribed.” Id. at 651. The Court warned OSHA against abusing ETSs:

“Congress repeatedly expressed its concern about allowing the Secretary to have too

much power over American industry,” and thus Congress “narrowly circumscribed

the Secretary’s power to issue temporary emergency standards.” Id. (emphasis

added). But the Mandate thumbs its nose at this precedent. And, shockingly, the

majority opinion below fails to address these holdings.

Nor can OSHA claim that COVID provides cause to ignore API. The Court

recently relied on the major-questions doctrine in holding that the CDC’s eviction

moratorium was illegal. Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2489 (2021).

The moratorium applied to “[a]t least 80% of the country, including between 6 and

17 million tenants at risk of eviction.” Id. Those figures pale in comparison to the

Mandate, which applies to 100% of the country’s geographic scope and over 84

million individuals (forcing vaccination or testing on 32 million of them).

14

In the Sixth Circuit, the government acknowledged that the Mandate causes

vast economic and political consequences, but claimed that the major-questions

doctrine does not apply at all because the text of 29 U.S.C. § 655(c) “unambiguously”

authorizes such seismic agency actions. It is quite a stretch to claim that Congress

unambiguously gave OSHA the power to impose requirements of incalculable

economic and political consequences:

•

Imposing vaccine-or-testing requirements for 84 million Americans.

See 86 Fed. Reg. at 61,471.

•

Requiring forcible vaccination or testing of over 31 million of those

Americans, 22.7 million of whom will be vaccinated against their

wishes. Id. at 61,471–61,472.

•

Imposing these requirements on every single industry in the country,

amounting to over 264,000 businesses. Id. at 61,475.

•

Imposing direct compliance costs of nearly $3 billion, not even counting

the economic fall-out, which will be incalculable. Id. at 61,493.

But, again, there is no need to speculate on whether OSHA has this power.

This Court rejected OSHA’s position 40 years ago. See API, 448 U.S. at 645, 650–51

(plurality). The Sixth Circuit lacked the power to disregard this Court’s holding.

Because there is no clear Congressional authorization, the Mandate fails the

major-questions doctrine and violates API.

This Court has similarly held that it expects Congress to use “exceedingly

clear language if it wishes to significantly alter the balance between federal and

15

state power.” Ala. Ass’n, 141 S. Ct. at 2489. But implementing widespread general

health programs is traditionally a matter for the States. See Jacobson v.

Massachusetts, 197 U.S. 11, 38 (1905) (“The safety and the health of the people of [a

State] are, in the first instance, for that [State] to guard and protect” and “are

matters that do not ordinarily concern the national government.”); BST Holdings,

17 F.4th at 617. As noted above, there is no clear authority in the OSH Act for the

Mandate, and thus it fails for this additional reason.

2.

The Mandate Violates the Nondelegation Doctrine.

If OSHA truly does have such broad statutory authority to issue the

Mandate, then § 655 violates the nondelegation doctrine. “[B]y directing that

legislating be done only by elected representatives in a public process, the

Constitution sought to ensure that the lines of accountability would be clear: The

sovereign people would know, without ambiguity, whom to hold accountable for the

laws they would have to follow.” Gundy v. United States, 139 S. Ct. 2116, 2134

(2019) (Gorsuch, J., dissenting, joined by Roberts, C.J., and Thomas, J.). Thus,

Congress may not “delegate ... powers which are strictly and exclusively legislative.”

Wayman v. Southard, 10 Wheat. 1, 42–43 (1825). This requirement—known as the

nondelegation doctrine—is a central component of separation of powers.

The original understanding of the Constitution prohibited any transfer of

Congress’s vested legislative powers to any other entity. Gundy, 139 S. Ct. at 2135–

37 (Gorsuch, J., dissenting). Congress must “make[] the policy decisions when

regulating private conduct.” Id. OSHA’s interpretation of § 655(c) violates this

original understanding. Under OSHA’s view, “what constitutes a risk worthy of

16

Agency action is a policy consideration”—an “essentially legislative task.” Asbestos,

727 F.2d at 421, 425; 86 Fed. Reg. at 61,405 (“determinations are ‘essentially

legislative’”). But policymaking is the role of Congress, and it “would frustrate ‘the

system of government ordained by the Constitution’ if Congress could merely

announce vague aspirations and then assign others the responsibility of adopting

legislation to realize its goals.” Gundy, 139 S. Ct. at 2133 (Gorsuch, J., dissenting).

Indeed, OSHA’s interpretation of § 655 would run afoul even of the morelenient modern interpretations of the nondelegation doctrine. Gundy, 139 S. Ct. at

2139 (Gorsuch, J., dissenting). Under OSHA’s view, “the degree of agency

discretion” and “the scope of the power congressionally conferred” are practically

limitless. Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 475 (2001).

OSHA cannot claim surprise, as API held that if OSHA were correct that

§ 655 permits regulation of the national economy, then “the statute would make

such a sweeping delegation of legislative power that it might be unconstitutional

under the Court’s reasoning in” its nondelegation cases. 448 U.S. at 646 (plurality).

The Court chose to apply a constitutional-avoidance canon to reject a broad

interpretation of OSHA’s power. Id.

The Court here should follow the same path, but if the Court nonetheless

adopts OSHA’s view, the Court should conclude that § 655 violates the

nondelegation doctrine.

17

C.

Even if OSHA Has Authority, an ETS Is Inappropriate.

OSHA has also failed to satisfy the statutory requirements for imposing an

ETS. The Court must “take a ‘harder look’ at OSHA’s action” because it was not

subject to the APA. Asbestos, 727 F.2d at 421.

No Necessity. OSHA can invoke its extraordinary ETS powers only upon a

finding that an urgent emergency has arisen such that the agency simply cannot

wait for the normal notice-and-comment process to occur. 29 U.S.C. § 655(c). That

is, OSHA must “prove[] that the ETS, OSHA’s most dramatic weapon in its

enforcement arsenal, is ‘necessary’ to achieve the projected benefits.” Asbestos, 727

F.2d at 426 (emphasis added).

“[T]he Agency’s failure to act may be evidence that a situation is not a true

emergency.” Asbestos, 727 F.2d at 423; see Peach Growers, 489 F.2d at 131 (the

alleged grave concern “has been going on during the last several years thus failing

to qualify for emergency measures”). But it is common knowledge that the COVID

pandemic has been ongoing since early 2020, and vaccines have been widely

available for almost all of 2021. OSHA provides no persuasive justification for why

there is suddenly such an emergency now when so many Americans have already

gotten vaccinated.

Notably, OSHA refused to issue an ETS in 2020 because “employers are

maintaining hazard-free work environments.” In re Am. Fed’n of Lab. & Cong. of

Indus. Organizations, No. 20-1158, 2020 WL 3125324, at *1 (D.C. Cir. June 11,

2020). That was during the height of the pandemic and is especially telling because

OSHA claims it is mandated to issue an ETS when conditions warrant.

18

Occupational Exposure to COVID-19; Emergency Temporary Standard, 86 Fed. Reg.

32,376-01, 32,380 (June 21, 2021) (claiming § 655(c) “is not discretionary”).

To be sure, an agency can change its mind. But COVID vaccines have been

around for nearly a year, and no explanation was offered for why OSHA issued the

Mandate only now, especially when vaccination rates are even better than before. In

the Sixth Circuit, the government explained away its refusal to issue an ETS in

June 2020 on the basis that there were no vaccines then. But the availability of

vaccines now makes it less necessary—not more—to impose something as drastic as

the Mandate.

In API, the Court criticized OSHA for “decid[ing] to apply the same limit to

all [industries], largely as a matter of administrative convenience.” API, 448 U.S. at

650 (plurality). “[I]t is expected that even an emergency temporary standard not

overlook those obvious distinctions among … uses and plant practices that make

certain regulations that are appropriate in one category of cases entirely

unnecessary in another.” Dry Color, 486 F.2d at 105. The Fifth Circuit correctly

held that the Mandate is not “necessary” because a one-size-fits-all rule is

inappropriate. BST Holdings, 17 F.4th at 615–16. The government argued below

that ETSs need not make “employer-by-employer or employee-by-employee”

distinctions. But an ETS must at least make sensible industry-by-industry

distinctions, and that was not even attempted here. Dry Color, 486 F.2d at 105.

In an attempt to show some degree of tailoring, the government pointed

below to exceptions for employees who work exclusively alone or outside. But these

19

are trivial, especially compared to the 84 million Americans who will nonetheless be

covered. For example, the Mandate estimates that only 9% of landscaping and

groundkeepers will qualify as working exclusively outdoors—and that is the highest

percentage of any occupation. 86 Fed. Reg. at 61,461. If only 9% of landscapers are

deemed to work outside, the entire exception is a fig leaf designed only to provide

the false sense of tailoring.

Further, “an ETS must, on balance, produce a benefit the costs of which are

not unreasonable. The protection afforded to workers should outweigh the economic

consequences to the regulated industry,” Asbestos, 727 F.2d at 423–24, “without

eliminating the [relevant] enterprise and the associated jobs,” Peach Growers, 489

F.2d at 130. But the Mandate will have precisely that effect and, ironically, will

encourage employees to switch to employers who are not covered by the Mandate—

causing severe economic disruption in the meantime. Pyle Affidavit, Ex. 4, ¶ 8;

Lawrence Affidavit, Ex. 4, ¶ 5; Berkebile Affidavit, Ex. 4, ¶¶ 7–8. As one Applicant

notes, the Mandate will actually force him to lay off vaccinated workers to save

costs. Lawrence Affidavit, Ex. 4, ¶ 7.2

No Grave Danger Demonstrated from Workplace Transmission. OSHA

must also demonstrate that the Mandate addresses a “grave” danger. 29 U.S.C.

§ 655(c). The Fifth Circuit aptly concluded that no grave danger would be prevented

by the Mandate. BST Holdings, 17 F.4th at 613–14. The question is not whether

2 Moreover, side effects from vaccines are a critical cost of the Mandate—but OSHA has deliberately

blinded itself to any calculation of these costs by saying it “will not enforce 29 CFR 1904’s recording

requirements to require any employers to record worker side effects from COVID-19 vaccination.”

OSHA, FAQ, https://www.osha.gov/coronavirus/faqs#vaccine.

20

COVID generally presents a grave danger, but whether the lack of a vaccine

mandate and weekly testing for the next few months presents a grave danger to

nearly every workplace in the entire nation such that OSHA was not required to go

through notice-and-comment rulemaking. Asbestos, 727 F.2d at 427. In other words,

OSHA “cannot use its ETS powers as a stop-gap measure” to avoid notice-andcomment. BST Holdings, 17 F.4th at 616.

OSHA’s prior actions declining to issue an ETS, as well as the lack of

tailoring discussed above confirm no such grave danger. Point in case: employees

with natural immunity from prior COVID infections are included in the Mandate,

but OSHA failed to conclude that such workers actually face a grave danger.

Rather, OSHA stated that it “is unable to establish that such immunity eliminates

grave danger.” 64 Fed. Reg. at 61,422. Through double negatives, OSHA is saying a

lack of evidence showing grave danger is somehow now enough to announce that a

grave danger exists. This alone warrants finding a lack of substantial evidence. See

BST Holdings, 17 F.4th at 615.

II.

Applicants Will Suffer Irreparable Injury in the Absence of a Stay.

Absent a stay, companies will immediately have to start the groundwork for

complying, such that they are in full compliance before the vaccine deadline hits in

early January. The Mandate expressly recognizes this fact: to “reduce burdens on

both employers and employees when the compliance dates for the additional

requirements for employees who are not fully vaccinated arrive,” OSHA “strongly

encourages employers to implement the required measures to support employee

21

vaccination as soon as practicable” after issuance of the Mandate. 86 Fed. Reg. at

61,549–61,550 (emphasis added). Elsewhere, the Mandate says it is “critical[ly]

importan[t]” to “implement[] the requirements in this ETS, including the

recordkeeping and reporting provisions, as soon as possible,” id. at 61,505, and “it is

essential that remediation efforts at a workplace be undertaken immediately,” id. at

61,545.

Having to comply with these requirements will undoubtedly yield irreparable

harm. “[C]omplying with a regulation later held invalid almost always produces the

irreparable harm of nonrecoverable compliance costs.” Thunder Basin Coal Co. v.

Reich, 510 U.S. 200, 220–21 (1994) (Scalia, J., concurring). That alone is sufficient

here. OSHA itself estimated there will be $2.98 billion in compliance costs over six

months. 86 Fed. Reg. at 61,493. Even if that amount were evenly spread over the

six-month life of the ETS, it would mean $16.5 million every single day. But the

costs are not evenly spread. They are overwhelmingly frontloaded (and thus

imminent) because companies will have to create all these programs and deal with

lost time for any employees who get vaccinated before the deadlines hit.

As the Fifth Circuit found, employees are facing imminent, irreparable harm

because the Vaccine Mandate forces “reluctant individual recipients … to a choice

between their job(s) and their jab(s)”; and companies are facing imminent,

irreparable harm in the form of “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

22

impose stiff financial penalties on companies that refuse to punish or test unwilling

employees.” BST Holdings, 17 F.4th at 618.

Those findings are amply supported by the record in this case. Applicants

are already facing intense labor shortages, and they often require many employees

with specialized licenses or training, leading to an extremely small pool of potential

hires, plus on-boarding processes that prevent new hires from quickly ramping up.

McKee Affidavit, Ex. 4, ¶ 7; Lawrence Affidavit, Ex. 4, ¶ 4; Berkebile Affidavit, Ex.

4, ¶ 6; Rabine Affidavit, Ex. 4, ¶¶ 4–5. But sizable portions of their workforce—

sometimes a majority—have indicated that they will not comply with the Mandate,

and to maximize the odds of finding a job at a company not covered by the Mandate,

there is a strong incentive for them to leave soon, regardless of when OSHA will

actually start enforcing the Mandate, and changing jobs is especially easy given the

low unemployment rate. Berkebile Affidavit, Ex. 4, ¶ 7; Lawrence Affidavit, Ex. 4, ¶

5.

Because of the difficulty in finding replacement workers, these companies

will be drastically short in workers, meaning cascading lost business with no hope

of recovery. Ala. Ass’n, 141 S. Ct. at 2489. These delayed and canceled shipments

and services will sour customer relationships, leading to lost business and

reputational harm. Pyle Affidavit, Ex. 4, ¶ 7; Lawrence Affidavit, Ex. 4, ¶¶ 7–8;

Berkebile Affidavit, Ex. 4, ¶ 8; Rabine Affidavit, Ex. 4, ¶ 8. To stay afloat,

companies will have to make drastic employment cuts, including of vaccinated

workers. See, e.g., Lawrence Affidavit, Ex. 4, ¶ 7.

23

The Mandate’s onerous logistical requirements for testing will likewise cause

irreparable harm by effectively “forc[ing] [workers] either to get vaccinated, or quit.”

Id., ¶ 10. Companies often lack the manpower to carry out mass testing—meaning

workers must leave the premises to get tested, causing additional lost productivity.

Berkebile Affidavit, Ex. 4, ¶ 10. The testing regime is undoubtedly designed to be so

burdensome that it presents no real option for the vast majority of companies.

For the individual Applicant Terri Mitchell, a compelled vaccination

represents an irreparable harm because it cannot be undone, and involuntary nasal

or throat testing—by edict of the President—is a breach of personal autonomy. As

Justice Scalia said: “I doubt that the proud men who wrote the charter of our

liberties would have been so eager to open their mouths for royal inspection.”

Maryland v. King, 569 U.S. 435, 482 (2013) (Scalia, J., dissenting).

Incredibly, OSHA never even bothered to calculate the irreparable damage

that will occur from employees leaving businesses because of the impending

Mandate deadlines, and the resulting cascading destruction of an already-stressed

supply chain. Those figures would dwarf the $3 billion in compliance costs.

The government argued below that only a small percentage of employees in

the past actually quit rather than be vaccinated. But those people were the early

adopters. At this point, if someone has not gotten vaccinated, he is unlikely to be

persuadable—and he means it when he says he will switch jobs rather than comply.

Indeed, the entire premise of the Mandate is that the remaining unvaccinated

people cannot be persuaded by the measures used in the past: “OSHA has found

24

that neither reliance on voluntary action by employers nor OSHA non-mandatory

guidance is an adequate substitute for specific, mandatory workplace standards at

the federal level.” 86 Fed. Reg. at 61,445.

Nor can the government claim that companies have not yet started incurring

costs, perhaps because company owners saw that the Fifth Circuit maintained a

stay since November 6, 2021. The White House has repeatedly told businesses to

move forward despite the Fifth Circuit’s rulings, as conveyed by prominent press

reports:

•

Morgan Chalfant, White House: Move Forward with Mandate Despite

Court

Freeze,

THE

HILL,

Nov.

8,

2021,

https://thehill.com/homenews/administration/580586-whits-housemove-forward-with-mandate-despite-court-freeze.

•

Morgan Chalfant, White House Tells Businesses to Move Forward with

Vaccine

Mandate,

THE

HILL,

Nov.

18,

2021,

https://thehill.com/homenews/administration/582232-white-house-tellsbusinesses-to-move-forward-with-vaccine-mandate.

Far from consisting of the usual puffery about their belief in ultimately

prevailing, these White House statements stepped perilously close to the line of

encouraging contempt of the Fifth Circuit’s order. On November 18, White House

Press Secretary Jen Psaki stated during a press conference that the government

still expects businesses to take action in advance of the now-stayed Mandate’s

January 4 deadline and that the government still views that deadline as the key

25

date for compliance. See Press Briefing by Press Secretary Jen Psaki, WHITE HOUSE,

Nov.

18,

2021,

https://www.whitehouse.gov/briefing-room/press-

briefings/2021/11/18/press-briefing-by-press-secretary-jen-psaki-november-18-2021/

(agreeing that the White House is “still working off of that January 4th compliance

deadline” and “still heading towards the same timeline,” and therefore businesses

are “urg[ed]” “to move forward with the President’s vaccine and weekly testing

rule”).

The government seeks to have it both ways: they tell the courts that there are

no immediate costs, then they tell the public to start complying now if they know

what is good for them.

An immediate stay is both necessary and appropriate, given the imminent

and irreparable harms imposed by the Mandate. The Fifth Circuit correctly

recognized this. This Court should grant this Application.

III.

The Equities and Public Interest Strongly Favor a Stay.

The equities and public interest likewise favor a stay. Nken, 556 U.S. at 435.

It “is indisputable that the public has a strong interest in combating the

spread of the COVID–19 Delta variant. But our system does not permit agencies to

act unlawfully even in pursuit of desirable ends.” Ala. Ass’n, 141 S. Ct. at 2490.

That ends the matter: OSHA has no equitable interest in enforcement of an invalid

ETS.

Moreover, there is an interest in maintaining the status quo, under which the

Mandate has not been in effect for nearly its entire existence. Nken, 556 U.S. at 429.

26

The Mandate has been stayed almost since the moment it was issued, and the Sixth

Circuit’s decision to spring the Mandate back into life—on a Friday night after close

of business, no less—will cause incredible chaos.

Further, the government has diminished equities. OSHA seeks to press-gang

private parties into forcibly vaccinating or testing over 30 million employees. And

OSHA issued the Mandate without even posting drafts or summaries online to

inform the public—unwarranted secrecy in the false name of efficiency, given that

the COVID pandemic has been around for nearly two years. Benisek v. Lamone, 138

S. Ct. 1942, 1944 (2018) (equitable interests “tilt[] against” a party who waits

“years” to initiate action). Meanwhile, even before the Mandate was issued, the

Department of Labor demanded that companies “begin the process of adopting

vaccination mandates,”3 an obvious in terrorem scheme where the government uses

threat of the Mandate to strong-arm companies into giving the government what it

wants, regardless of whether the Mandate will be upheld in court.

Threatening to issue illegal edicts as a strategy to force involuntary

vaccinations and testing is a cynical exercise of government powers, unworthy of

equitable charity. Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co., 324 U.S.

806, 815 (1945).

The Mandate itself even stoops to personal attacks against those who

question OSHA’s authority, labeling those who “resist curbs on personal freedoms”

3 Ben Penn, Top DOL Lawyer Courts Business Support for Biden’s Vaccine Order, Bloomberg Law,

Sept. 10, 2021, https://news.bloomberglaw.com/daily-labor-report/top-dol-lawyer-courts-businesssupport-for-bidens-vaccine-order.

27

as suffering from “psychological reactance,” which OSHA implies is some kind of

undesirable mental condition. 86 Fed. Reg. at 61,444.

By contrast, Applicants have strong equitable interests. They have already

suffered greatly over the last two years and now face terribly difficult choices about

the viability of their businesses, as demonstrated above.

There are also very strong public interests in staying the Mandate, as the

attached affidavits explain in detail. Applicants were deemed “essential” during the

lockdown because they serve as critical cogs in our nation’s economy. Lawrence

Affidavit, Ex. 4, ¶ 9; Berkebile Affidavit, Ex. 4, ¶ 9; Rabine Affidavit, Ex. 4, ¶ 10.

These companies represent just a tiny fraction of those affected. Nationwide, thirty

percent of unvaccinated workers have indicated they will not comply, which will

wreak havoc on supply chains. See, e.g., Spencer Kimball, Business Groups Ask

White House to Delay Biden Covid Vaccine Mandate Until After the Holidays,

CNBC,

https://www.cnbc.com/2021/10/25/businesses-ask-white-house-to-delay-

biden-covid-vaccine-mandate-until-after-holidays.html.

Food will not be produced or transported to grocery stores, schools, and

nursing homes; household products will not be manufactured; damaged roofs and

sinkholes will not be repaired; snow will not get removed; and buildings with

broken HVAC systems will turn into freezing meat lockers. Pyle Affidavit, Ex. 4,

¶ 10; McKee Affidavit, Ex. 4, ¶ 11; Lawrence Affidavit, Ex. 4, ¶ 9; Berkebile

Affidavit, Ex. 4, ¶ 9; Rabine Affidavit, Ex. 4, ¶ 9. This in turn will cause a cascade

effect that takes down companies at each link in the supply chain, along with the

28

workers at those companies and their local communities. McKee Affidavit, Ex. 4,

¶¶ 12–13.

CONCLUSION

For the foregoing reasons, Applicants respectfully request a stay pending the

disposition of Applicants’ petition for review currently pending before the United

States Court of Appeals for the Sixth Circuit and pending any further proceedings

in this Court.

Respectfully submitted,

By_________________________________

Jonathan Berry

Counsel of Record

Jonathan Berry

Counsel of Record

BOYDEN GRAY & ASSOCIATES PLLC

801 17th Street NW, Suite 350

Washington, DC 20006

(202) 955-0618

berry@boydengrayassociates.com

Counsel for Applicants

December 17, 2021

29