Application — The Southern Baptist Theological Seminary, et al., Applicants v. Department of Labor, Occupational Safety and Health Administration, et al.

Supreme Court briefDec 17, 2021

Ask Donna

What actually matters in this document.

Text

No. 21A______

IN THE SUPREME COURT OF THE UNITED STATES

The Southern Baptist Theological Seminary, Asbury Theological Seminary, Sioux

Falls Catholic Schools d/b/a Bishop O’Gorman Catholic Schools, The King’s

Academy, Cambridge Christian School, Home School Legal Defense Association,

Inc., and Christian Employers Alliance,

Applicants,

Occupational Safety & Health Administration, et al.,

Respondents.

EMERGENCY APPLICATION FOR STAY PENDING JUDICIAL REVIEW,

OR, ALTERNATIVELY, PETITION FOR A WRIT OF CERTIORARI

BEFORE JUDGMENT AND STAY PENDING RESOLUTION

To the Honorable Brett M. Kavanaugh,

Associate Justice of the Supreme Court of the United States

and Circuit Justice for the Sixth Circuit

Ryan L. Bangert

Ryan J. Tucker

ALLIANCE DEFENDING FREEDOM

15100 N 90th Street

Scottsdale, AZ 85260

(480) 444-0020

rbangert@ADFlegal.org

rtucker@ADFlegal.org

John J. Bursch

Counsel of Record

David A. Cortman

Matthew S. Bowman

Frank H. Chang

ALLIANCE DEFENDING FREEDOM

440 First Street, NW, Suite 600

Washington, DC 20001

(202) 393-8690

jbursch@ADFlegal.org

dcortman@ADFlegal.org

mbowman@ADFlegal.org

fchang@ADFlegal.org

Counsel for Religious Institutions

QUESTIONS PRESENTED

Pfizer’s COVID-19 vaccine became publicly available in December 2020. But

not until November 2021 did the Occupational Safety and Health Administration

(“OSHA”) issue an Emergency Temporary Standard (“ETS”) requiring vaccination or

weekly testing in workplaces with 100 or more employees, 29 C.F.R. § 1910.501—

after OSHA declined to find such a need in general workplaces earlier this year. The

Occupational Safety and Health Act (“OSH Act’) requires substantial evidence that

an ETS is necessary to protect employees from grave occupational risks, and the Act

is only “applicable to businesses affecting interstate commerce.” 29 U.S.C. §§ 651,

655. Yet the 100-employee line was not based on interstate-commerce considerations,

OSHA admits the line was not based on a difference in occupational risk, and OSHA

placed the burden on employers to impose the mandate while stating employees may

need to bear the costs of testing, an agency first.

Applicants are religious non-profits and businesses that object to the ETS’s

financial burdens, its restrictions on employee hiring, and its coercion of employee

choices. The questions presented are:

1. Whether OSHA’s private-employer mandate is an unlawful exercise of

constitutional or statutory authority.

2. Whether OSHA’s private-employer mandate violates the Religious Freedom

Restoration Act or the First Amendment.

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................................................................... i

TABLE OF AUTHORITIES ......................................................................................... iv

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

CORPORATE DISCLOSURE STATEMENT ............................................................... 4

PARTIES TO THE PROCEEDING .............................................................................. 4

LIST OF PROCEEDINGS AND DECISIONS BELOW ............................................... 4

JURISDICTION............................................................................................................. 5

STATEMENT OF THE CASE ....................................................................................... 5

Standard-setting provisions under the Occupational Safety and

Health Act ................................................................................................. 5

OSHA’s vaccine-or-test mandate ............................................................. 6

Lower court proceedings .......................................................................... 8

REASONS FOR GRANTING THE APPLICATION .................................................. 14

Religious Institutions are likely to succeed on the merits. ............................. 14

The Mandate exceeds OSHA’s authority............................................... 14

OSHA lacks jurisdiction to regulate religious non-profit

institutions. .................................................................................. 14

OSHA lacks authority to issue sweeping non-workplace

public health measures. .............................................................. 19

OSHA also cannot justify the Mandate under the ETS

provision. ...................................................................................... 23

The Mandate violates the First Amendment and RFRA. ..................... 26

The Mandate impermissibly dictates Religious

Institutions’ employment decisions and frustrates their

religious mission. ......................................................................... 26

The Mandate falters under RFRA’s strict scrutiny.................... 29

There is a reasonable probability that the Court will grant

review. ..................................................................................................... 33

II.

Absent a stay, Religious Institutions will suffer irreparable injuries. ........... 34

III.

The equities and the public interest favor a stay. ........................................... 35

IV.

Alternatively, the Court should treat this application as a petition for

certiorari before judgment and grant certiorari forthwith, and grant a

stay pending resolution of the petition.. .......................................................... 36

CONCLUSION............................................................................................................. 38

CERTIFICATE OF SERVICE ..................................................................................... 40

Exhibit 1 - U.S. Court of Appeals for the Sixth Circuit Order in No. 21-7000 Lifting

Stay, Issued December 17, 2021

Exhibit 2 - Declaration of Jonathan B. Austin, dated November 5, 2021

Exhibit 3 - Declaration of Bryan P. Blankenship, dated November 5, 2021

Exhibit 4 - Declaration of Kyle L. Groos, dated November 5, 2021

Exhibit 5 - Declaration of Randal L. Martin, dated November 5, 2021

Exhibit 6 - Declaration of Shawn Minks, dated November 5, 2021

Exhibit 7 - Declaration of J. Michael Smith, dated November 5, 2021

Exhibit 8 - Declaration of Shannon O. Royce, dated November 4, 2021

Exhibit 9 - COVID-19 Vaccination and Testing: Emergency Temporary Standard, 86

Fed. Reg. 61402 (Nov. 5, 2021)

iii

TABLE OF AUTHORITIES

Cases

Alabama Association of Realtors v. HHS,

141 S. Ct. 24859 (2021) ................................................................................... passim

American Dental Association v. Martin,

984 F.2d 823 (7th Cir. 1993) ................................................................................... 20

Asbestos Information Association/North America v. OSHA,

727 F.2d 415 (5th Cir. 1984) ............................................................................... 6, 26

BST Holdings, LLC v. OSHA,

17 F.4th 604 (5th Cir. 2021) ............................................................................ passim

BST Holdings, LLC v. OSHA,

No. 21-6845, 2021 WL 5166656 (5th Cir. Nov. 6, 2021) ....................................... 4, 8

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) ........................................................................................... 29, 30

Colorado Christian University v. Weaver,

534 F.3d 1245 (10th Cir. 2008) ............................................................................... 18

Dahl v. West Michigan University,

15 F.4th 728 (6th Cir. 2021) .................................................................................... 32

Does 1–3 v. Mills,

142 S. Ct. 17 (2021) ........................................................................................... 33, 38

Dr. A. v. Hochul,

No. 21A145, 2021 WL 5873126 (U.S. Dec. 13, 2021) ....................................... 32, 38

Duquesne University of the Holy Spirit v. NLRB,

947 F.3d 824 (D.C. Cir. 2020).................................................................................. 18

EEOC v. Mississippi College,

626 F.2d 477 (5th Cir. 1980) ................................................................................... 28

Elrod v. Burns,

427 U.S. 347 (1976) ................................................................................................. 34

Encino Motorcars, LLC v. Navarro,

579 U.S. 211 (2016) ................................................................................................. 25

Florida Peach Growers Association, Inc. v. U.S. Department of Labor,

489 F.2d 120 (5th Cir. 1974) ................................................................................... 37

Florida v. HHS,

No. 21-14098-JJ, 2021 WL 5768796 (11th Cir. Dec. 6, 2021) ................................ 37

Forging Industry Association v. Secretary of Labor,

773 F.2d 1436 (4th Cir. 1985) ................................................................................. 19

Free Enterprise Fund v. Public Company Accounting Oversight Board,

561 U.S. 477 (2010) ................................................................................................. 21

Guedes v. Bureau of Alcohol, Tobacco, Firearms and Explosives,

140 S. Ct. 789 (2020) ............................................................................................... 21

Gundy v. United States,

139 S. Ct. 2116 (2019) ............................................................................................. 22

Hall v. Baptist Memorial Health Care Corp.,

215 F.3d 618 (6th Cir. 2000) ................................................................................... 28

Hillsborough County, Florida v. Automated Medical Laboratories, Inc.,

471 U.S. 707 (1985) ................................................................................................. 22

Hollingsworth v. Perry,

558 U.S. 183 (2010) ................................................................................................. 33

Home Depot USA, Inc. v. Jackson,

139 S. Ct. 1743 (2019) ............................................................................................. 17

Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC,

565 U.S. 171 (2012) ........................................................................................... 26, 34

In re: MCP No. 165, Occupational Safety & Health Administration, Interim

Rule: COVID-19 Vaccination & Testing, Emergency Temporary Standard,

No. 21-7000, 2021 WL 5914024 (6th Cir. Dec. 15, 2021) ............................... passim

Industrial Union Department, AFL-CIO v. American Petroleum Institute,

448 U.S. 607 (1980) ................................................................................................. 22

Kedroff v. St. Nicholas Cathedral,

344 U.S. 94 (1952) ....................................................................................... 18, 26, 27

Kennedy v. St. Joseph’s Ministries, Inc.,

657 F.3d 189 (4th Cir. 2011) ................................................................................... 28

Killinger v. Samford University,

113 F.3d 196 (11th Cir. 1997) ................................................................................. 28

Little Sisters of the Poor v. Pennsylvania,

140 S. Ct. 2367 (2020) ....................................................................................... 17, 30

Little v. Wuerl,

929 F.2d 944 (3d Cir. 1991) ..................................................................................... 28

Louisiana v. Becerra,

No. 21-30734, 2021 WL 5913302 (5th Cir. Dec. 15, 2021) ..................................... 37

Louisiana v. Becerra,

No. 3:21-cv-3970, 2021 WL 5609846 (W.D. La. Nov. 30, 2021) ............................. 36

Mexichem Specialty Resins, Inc. v. EPA,

787 F.3d 544 (D.C. Cir. 2015).................................................................................. 14

National Federation of Independent Businesses v. Sebelius,

567 U.S. 519 (2012) ................................................................................................. 23

NCAA v. Alston,

141 S. Ct. 2141 (2021) ............................................................................................. 16

Niz-Chavez v. Garland,

141 S. Ct. 1474 (2021) ............................................................................................. 15

Nken v. Holder,

556 U.S. 418 (2009) ................................................................................................. 14

NLRB v. Catholic Bishop of Chicago,

440 U.S. 490 (1979) ..................................................................................... 17, 18, 28

Our Lady of Guadalupe School v. Morrissey-Berru,

140 S. Ct. 2049 (2020) ........................................................................... 17, 26, 28, 34

Presiding Bishop v. Amos,

483 U.S. 327 (1987) ..................................................................................... 18, 27, 28

Public Citizen Health Research Group v. Auchter,

702 F.2d 1150 (D.C. Cir. 1983).................................................................................. 6

Rodriguez v. United States,

480 U.S. 522 (1987) ................................................................................................. 17

Roman Catholic Diocese of Brooklyn v. Cuomo,

141 S. Ct. 63 (2020) ................................................................................................. 38

Sambrano v. United Airlines, Inc.,

No. 21-11159, 2021 WL 5881819 (5th Cir. Dec. 13, 2021) ............................... 30, 38

SEC v. Chenery Corp.,

318 U.S. 80 (1943) ............................................................................................. 12, 25

Spencer v. World Vision, Inc.,

633 F.3d 723 (9th Cir. 2011) ................................................................................... 28

Tandon v. Newsom,

141 S. Ct. 1294 (2021) ............................................................................................. 32

Taniguchi v. Kan Pacific Saipan, Ltd.,

566 U.S. 560 (2012) ................................................................................................. 20

Thomas v. Review Board of Indiana Employment Security Division,

450 U.S. 707 (1981) ..................................................................................... 29, 30, 31

Thunder Basin Coal Co. v. Reich,

510 U.S. 200 (1994) ................................................................................................. 35

U.S. Forest Services v. Cowpasture River Preservation Association,

140 S. Ct. 1837 (2020) ............................................................................................. 22

United States v. Lopez,

514 U.S. 549 (1995) ................................................................................................. 23

Utility Air Regulatory Group v. EPA,

573 U.S. 302 (2014) ................................................................................................. 21

Van Buren v. United States,

141 S. Ct. 1648 (2021) ............................................................................................. 17

West Virginia University Hospitals, Inc. v. Casey,

499 U.S. 83 (1991) ................................................................................................... 17

West Virginia v. EPA,

577 U.S. 1126 (2016) ............................................................................................... 33

Whole Woman’s Health v. Jackson,

No. 21-463, 2021 WL 5855551 (U.S. Dec. 10, 2021) ............................................... 38

Statutes

15 U.S.C. § 1 ................................................................................................................. 17

28 U.S.C. § 1254 ............................................................................................................. 5

vii

28 U.S.C. § 1651 ............................................................................................................. 5

28 U.S.C. § 2112 ......................................................................................................... 1, 5

29 U.S.C. § 651 ..................................................................................................... passim

29 U.S.C. § 652 ............................................................................................................. 16

29 U.S.C. § 653 ............................................................................................................. 12

29 U.S.C. § 654 ............................................................................................................... 6

29 U.S.C. § 655 ..................................................................................................... passim

29 U.S.C. § 657 ....................................................................................................... 12, 21

42 U.S.C. § 1988 ........................................................................................................... 18

42 U.S.C. § 2000bb-1.................................................................................................... 30

42 U.S.C. § 2000e ......................................................................................................... 17

42 U.S.C. § 2000e-1 ...................................................................................................... 17

5 U.S.C. § 705 ........................................................................................................... 5, 15

Other Authorities

Brett M. Kavanaugh, Fixing Statutory Interpretation,

129 Harv. L. Rev. 2118 (2016)................................................................................. 21

Business, American Dictionary of English Language (1970) ..................................... 19

Business, Ballentine’s Law Dictionary (3d ed. 1969) ................................................. 18

Business, Black’s Law Dictionary (11th ed. 2019) ...................................................... 19

Business, Random House Dictionary (Unabridged ed. 1967) .................................... 18

Doug Laycock, Towards a General Theory of the Religion Clauses,

81 Colum. L. Rev. 1373, 1398 (1992) ...................................................................... 23

Joe Walsh, Federal Government Will Hold Off on Firing Unvaccinated Workers

Until Next Year, Forbes (Nov. 29, 2021), https://biturl.top/Yz2E3m ..................... 44

U.S. Response to Petition for Writ of Mandamus, In re AFL-CIO, No. 20-1158

(D.C. Cir. May 29, 2020) .................................................................................. passim

viii

White House, Press Briefing by Press Secretary Jen Psaki (July 23, 2021),

https://biturl.top/AZNBJ3 ......................................................................................... 9

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

(Aug. 3, 2021), https://biturl.top/y2ymmq .............................................................. 42

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

(September 9, 2021), https://biturl.top/N7RN7v ...................................................... 9

Rules

Sup. Ct. R. 11 ......................................................................................................... 45, 46

Sup. Ct. R. 29.6 .............................................................................................................. 4

Regulations

29 C.F.R. § 1903.15 ........................................................................................................ 6

29 C.F.R. § 1910.501 ...................................................................................................... 8

29 C.F.R. § 1975.3 ........................................................................................................ 17

29 C.F.R. § 1975.4 .................................................................................................. 17, 19

86 Fed. Reg. 61402 ............................................................................................... passim

Constitutional Provisions

U.S. Const. art. I, § 1 ................................................................................................... 28

To the Honorable Brett M. Kavanaugh, Circuit Justice for the United States

Court of Appeals for the Sixth Circuit:

The Southern Baptist Theological Seminary, Asbury Theological Seminary,

Sioux Falls Catholic Schools d/b/a Bishop O’Gorman Catholic Schools, The King’s

Academy, Cambridge Christian School, Home School Legal Defense Association, Inc.

(“HSLDA”), and Christian Employers Alliance (“CEA”) (“Religious Institutions”)

respectfully request that the Court stay the Occupational Safety and Health

Administration

(“OSHA”)’s

Emergency

Temporary

Standard

announced

November 4, 2021 (“ETS” or “Mandate”) pending judicial review. See COVID-19

Vaccination and Testing: Emergency Temporary Standard, 86 Fed. Reg. 61402 (Nov.

5, 2021) (codified at 29 C.F.R. pts. 1910 et seq.). In addition, the Court should issue

an immediate administrative stay while it considers this application.

In the alternative, the Court should treat this application as a petition for writ

of certiorari before judgment, grant certiorari forthwith, and issue a stay pending

resolution of the petition.

INTRODUCTION

Relief is warranted because the federal government has vastly overreached.

The multi-circuit petition statute, 28 U.S.C. § 2112, has uniquely allowed two Courts

of Appeals to assess the lawfulness of OSHA’s Mandate already. Eleven Circuit

Judges—including a unanimous three-judge panel of the Fifth Circuit and half of all

active Judges of the Sixth Circuit—have concluded that the Mandate is unlawful.

BST Holdings, LLC v. OSHA, 17 F.4th 604, 619 (5th Cir. 2021); In re: MCP No. 165,

Occupational Safety & Health Admin., Interim Rule: COVID-19 Vaccination &

Testing, Emergency Temporary Standard 86 Fed. Reg. 61402, No. 21-7000, 2021 WL

5914024, at *15 (6th Cir. Dec. 15, 2021) (“In re OSHA”) (Sutton, C.J., dissenting from

the denial of initial hearing en banc); Order, In re OSHA, No. 21-7000 (6th Cir. Dec.

17, 2021) (Dkt. 386) (Larsen, J., dissenting). Yet the OSHA Mandate became effective

by a mere two Judges constituting the majority of a sharply divided motions panel.

For the vast majority of the Judges who have examined the merits, however,

concluding that OSHA exceeded its authority was not “particularly hard.” In re

OSHA, 2021 WL 5914024, at *4 (Sutton, C.J., dissenting from the denial of initial

hearing en banc); see also BST Holdings, 17 F.4th at 619 (Duncan, J., concurring)

(not a “hard question”). Yet, the Sixth Circuit’s motions panel decided to follow an

uncharted path by lifting the Fifth Circuit’s stay and allowing OSHA to enforce the

Mandate. The stakes are too high for “the federal courts [to] mistakenly allow this

rule to go into effect.” In re OSHA, 2021 WL 5914024, at *14 (Sutton, C.J., dissenting

from the denial of initial hearing en banc).

Indeed, relief is warranted because the Mandate seeks to issue sweeping nonworkplace, public health measures. The Occupational Safety and Health Act (“OSH

Act”) only concerns “workplace-specific hazards” and “workplace-specific safety

measures.” Id. at *7. The text, long-standing agency practice, the major questions

doctrine, the federalism clear-statement rule, and the constitutional-avoidance canon

confirm this reading. Id. at *6, *7–*8; see also BST Holdings, 17 F.4th at 617.

Moreover, OSHA failed to satisfy the requirements of the ETS provision.

OSHA concedes that COVID-19 presents a risk ranging from “mild” to “critical,” id.

at 614, and that “the risk to vaccinated employees of continuing to work with

unvaccinated employees is ‘not’ a ‘grave danger,” In re OSHA, 2021 WL 5914024, at

*10 (Sutton, C.J., dissenting from the denial of initial hearing en banc). It is no

wonder that eleven Judges have concluded that this is not the kind of grave danger

that the OSH Act contemplates. Moreover, the failure to tailor the remedy and the

arbitrary 100-employee threshold, based on “administrative capacity,” “belies the

premise that any of this is truly an emergency.” BST Holdings, 17 F.4th at 616.

It is problematic enough that the Mandate exceeds OSHA’s authority, imposes

$3 billion in compliance costs, seeks to resolve one of the most hotly debated political

topics in recent memory, and seeks to alter the federal-state balance.

But the

Mandate also inserts federal power into the employment decisions of religious

institutions, despite the fact that the OSH Act does not allow OSHA to regulate

religious non-profit organizations.

Absent a stay, OSHA will immediately “commandeer[ ]” Religious Institutions

to enforce federal mandates on their own ministers and employees and “compel” them

to “receive a COVID-19 vaccine or bear the burden of weekly testing.” Id. at 617.

OSHA will interfere with Religious Institutions’ internal management and

employment decisions, and substantially burden their faith.

And it will force

Religious Institutions to incur significant costs and divert resources away from their

mission of preaching the Gospel and living out their faith. That is an abuse of

executive power.

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, The Southern Baptist Theological

Seminary, Asbury Theological Seminary, Sioux Falls Catholic Schools d/b/a Bishop

O’Gorman Catholic Schools, The King’s Academy, Cambridge Christian School,

HSLDA, and CEA state that they have no parent company or stock.

PARTIES TO THE PROCEEDING

The applicants (petitioners below) are as follows:

The Southern Baptist

Theological Seminary, Asbury Theological Seminary, Sioux Falls Catholic Schools

d/b/a Bishop O’Gorman Catholic Schools, The King’s Academy, Cambridge Christian

School, HSLDA, and CEA. The respondents (respondents below) are as follows: The

United States of America; U.S. Department of Labor; OSHA; Joseph R. Biden, in his

official capacity as the President of the United States; Martin J. Walsh, in his official

capacity as the Secretary of Labor; Douglas L. Parker, in his official capacity as the

Assistant Secretary of Labor for Occupational Safety and Health Administration; and

James Frederick, in his official capacity as the Deputy Assistant Secretary of Labor

for Occupational Safety and Health Administration.

LIST OF PROCEEDINGS AND DECISIONS BELOW

The Fifth Circuit’s unreported November 6, 2021 order finding “grave

statutory and constitutional issues with the Mandate” and staying the Mandate is

available at 2021 WL 5166656, at *1 (5th Cir. Nov. 6, 2021).

The Fifth Circuit’s reported November 12, 2021 order extending the stay and

ordering OSHA to “take no steps to implement or enforce the Mandate” is available

at 17 F.4th 604, 619 (5th Cir. 2021).

The Sixth Circuit’s reported December 15, 2021 order denying initial hearing

en banc, Chief Judge Sutton’s dissent from the denial of initial hearing en banc

finding the Mandate unlawful, and Judge Bush’s separate dissent finding the

Mandate unlawful are available at 2021 WL 5914024 (6th Cir. Dec. 15, 2021).

The Sixth Circuit motions panel’s reported order lifting the Fifth Circuit’s stay

(“Op.”) is reprinted in Exhibit 1. Judge Larsen’s opinion dissenting from the order

lifting the Fifth Circuit’s stay is also found in Exhibit 1.

JURISDICTION

The Sixth Circuit has jurisdiction pursuant to 29 U.S.C. § 655(f) and 28 U.S.C.

§ 2112(a)(3). This Court has jurisdiction under 28 U.S.C. § 1254(1) and authority to

grant relief for Religious Institutions under the Administrative Procedure Act,

5 U.S.C. § 705, and the All Writs Act, 28 U.S.C. § 1651(a).

STATEMENT OF THE CASE

Standard-setting provisions under the Occupational Safety and

Health Act

Congress enacted the OSH Act to address “personal injuries and illnesses

arising out of work situations,” 29 U.S.C. § 651(a), and to ensure “safe and healthful

working conditions,” id. § 651(b).

Congress enabled OSHA to promulgate an

“occupational safety or health standard” after public comment. Id. § 655(b). Congress

also allowed OSHA to promulgate an emergency and temporary standard without

public comment. Id. § 655(c)(1).

An ETS becomes effective when published in the Federal Register.

Id.

§ 655(c)(3). Such a standard is effective for six months after publication, at which

time OSHA must complete a permanent standard-setting. Id. An ETS carries “the

force of law” and can be enforced by OSHA like any other standard. Asbestos Info.

Ass’n/N. Am. v. OSHA, 727 F.2d 415, 417 (5th Cir. 1984); see also 29 U.S.C. § 654

(requiring adherence to OSHA’s standards). Employers who violate the standard can

face up to $13,653 for each violation and up to $136,532 for each willful violation. 29

C.F.R. § 1903.15(d).

The bar to issuing an ETS is high. OSHA must determine “(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).

Furthermore, courts “take a ‘harder look’ at OSHA’s action than [it] would if [it] were

reviewing the action under the more deferential arbitrary and capricious standard.”

Asbestos Info. Ass’n, 727 F.2d at 421.

Issuing an ETS is “the most drastic measure in [OSHA’s] standard-setting

arsenal.”. Pub. Citizen Health Rsch. Grp. v. Auchter, 702 F.2d 1150, 1153 (D.C. Cir.

1983). OSHA has used “these emergency powers infrequently.” In re OSHA, 2021

WL 5914024, at *3 (Sutton, C.J., dissenting from the denial of initial hearing en

banc). “In its fifty-year history, OSHA has issued just ten ETSs. Six were challenged

in court; only one survived.” BST Holdings, 17 F.4th at 609.

OSHA’s vaccine-or-test mandate

1. Until recently, the federal government opposed a one-size-fits-all approach

to combatting COVID-19. See U.S. Resp. to Pet. for Writ of Mandamus 33–34, In re

AFL-CIO, No. 20-1158 (D.C. Cir. May 29, 2020) (hereinafter “D.C. Cir. Br.”). The

Department of Labor recently stated 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.” Id. It

preferred a flexible policy “which can be swiftly updated and tailored to industryspecific needs.” Id. at 28. And as recently as July of this year, the White House said

that imposing a COVID-19 vaccine mandate was “not the role of the federal

government.” White House, Press Briefing by Press Secretary Jen Psaki (July 23,

2021), https://biturl.top/AZNBJ3.

2. But in an abrupt about-face, on September 9, 2021, the White House stated

that “[its] patience is wearing thin” and that it would direct the Department of Labor

to “develop[ ] an emergency rule to require all employers with 100 or more employees”

to enforce a federal vaccine-or-test mandate. White House, Remarks by President

Biden

Fighting

the

COVID-19

Pandemic

(September

2021),

https://biturl.top/N7RN7v. OSHA dutifully complied. On November 5, 2021, OSHA

published the Mandate on COVID-19 vaccination.

Mandatory vaccination policy requirement.

The Mandate requires a

covered employer to develop, implement, and enforce either a written mandatory

vaccination policy or an alternative testing and masking policy.

29 C.F.R.

§ 1910.501(d)(1). “[E]ach employee” must “be fully vaccinated,” unless he qualifies

for medical or religious exemptions and reasonable accommodations.

Id.

§ 1910.501(c). Employers must provide paid time off for employees to get vaccinated

and for recovery from side effects. Id. § 1910.501(f). Alternatively, the employer must

ensure weekly testing and mandatory masking for its unvaccinated employees. Id.

§ 1910.501(d)(2).

Testing & Masking Requirements.

“An [unvaccinated] employee who

reports at least once every 7 days to a workplace” must be tested “at least once every

7 days” and “[m]ust provide documentation . . . no later than the 7th day following

[the last test].” Id. 1910.501(g)(1). Unlike the cost of vaccines borne by the federal

government, or the cost of paid leave for vaccination borne by the employers, In re

OSHA, 2021 WL 5914024, at *5, the cost of weekly testing is either borne by the

employer or passed onto the unvaccinated employees, 29 C.F.R. § 1910.501(g)

(note 1). Also, “[t]he employer must ensure that each [unvaccinated] employee . . .

wears a face covering when indoors” at work and “fully cover [her] nose and mouth.”

Id. § 1910.501(i).

Lower court proceedings

1. The Mandate immediately faced a barrage of legal challenges all over the

country, resulting in cases pending in 12 courts of appeals. On November 6, 2021,

citing “grave statutory and constitutional issues with the [m]andate,” the Fifth

Circuit issued an administrative stay. BST Holdings, 2021 WL 5166656, at *1.

On November 12, 2021, the same Fifth Circuit panel unanimously granted a

stay pending judicial review and enjoined OSHA from taking “steps to implement or

enforce the Mandate until further court order.” BST Holdings, 17 F.4th at 619.

Critically, the Fifth Circuit rejected OSHA’s interpretation of the OSH Act that

it empowered OSHA to issue non-workplace, public-health edicts. It found “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 threatening to a vast majority of

employees into a neighboring phrase connoting toxicity and poisonousness” to be a

“transparent stretch.”

Id. at 613.

The court also relied on OSHA’s “prior

representation to the D.C. Circuit” that “COVID-19 is a recognized hazard” and

cannot constitute a “new hazard” under the OSH Act. Id. (citing D.C. Cir. Br. 25).

Moreover, the court held that OSHA could not justify the Mandate under the

ETS provision, 29 U.S.C. § 655(c)(1). In the court’s view, OSHA failed to establish

“the kind of grave danger [the OSH Act] contemplates.” BST Holdings, 17 F.4th at

613. For one, “the Mandate itself concede[d] that the effects of COVID-19 may range

from ‘mild’ to ‘critical,’” and that the virus poses “little risk” to nearly 80% of

Americans aged 12 and older who are fully or partially vaccinated. Id. at 614 (citing

86 Fed. Reg. 61402–03). For another, OSHA failed to explain its departure from its

previous position that an ETS was not necessary to address COVID-19. Id.

Next, the court held that OSHA also failed to show that the Mandate—which

was “staggeringly overbroad”—was necessary. Id. at 615. The Mandate was both

overinclusive and underinclusive. By departing from its prior preference for tailored

and industry-specific approach, OSHA’s overly inclusive mandate failed to

differentiate the risk levels between industries and employees’ age. Id. (observing

that “a 28 year-old trucker” is less vulnerable than “a 62 year-old prison janitor”).

Furthermore, the 100-employee threshold was based on the fact that “companies of

100 or more employers will be better able to administer (and sustain) the Mandate,”

not because of an actual emergency. Id. at 616. “[T]his kind of thinking belie[d] the

premise that any of this is truly an emergency.” Id.

Finally, the court held that the various constitutional concerns raised by the

Mandate confirmed rejecting OSHA’s broad reading of the OSH Act. OSHA’s reading

would “regulate[ ] noneconomic inactivity that falls squarely within the States’ police

power” and “far exceed [the federal government’s] current constitutional authority.”

Id. at 617.

And “the major questions doctrine”—and the absence of a clear

Congressional authorization—required rejecting OSHA’s reading. OSHA was using

“an old statute . . . in a novel manner” to “impose[ ] nearly $3 billion in compliance

costs” and “definitively resolve one of today’s most hotly debated political issues” that

were “outside of OSHA’s core competencies.” Id. In a separate opinion, Judge Duncan

observed that it was not a “hard question” to conclude that the Mandate was unlawful

under the major questions doctrine. Id. at 619 (Duncan, J., concurring).

2. After the Mandate was stayed by the Fifth Circuit, on November 16, 2021,

the Judicial Panel on Multidistrict Litigation selected the Sixth Circuit to handle the

consolidated case.

Roughly 59 parties petitioned the Sixth Court for an initial

hearing en banc. See In re OSHA, 2021 WL 5914024, at *4 (Sutton, C.J., dissenting

from the denial of initial hearing en banc). While the en banc petitions were pending,

on November 23, 2021, the government moved to dissolve the Fifth Circuit’s stay.

On December 15, 2021, the Sixth Circuit denied initial hearing en banc by an

8-8 vote. Chief Judge Sutton—joined by Judges Kethledge, Thapar, Bush, Larsen,

Nalbandian, Readler, and Murphy—would have granted initial hearing en banc.

Chief Judge Sutton’s opinion also carefully explained why the Mandate is

unlawful. In his view, resolving the “conflict between existing law and [OSHA’s]

proposed policy is not particularly hard:” OSHA lacked authority to issue the

Mandate. Id. at *3. As he explained, “federal courts ‘expect Congress to speak clearly

when authorizing an agency to exercise powers of ‘vast economic and political

significance’’ and to use ‘exceedingly clear language if it wishes to significantly alter

the balance between federal and state power.’”

Id. at *1 (quoting Ala. Ass’n of

Realtors v. HHS, 141 S. Ct. 2485, 2489 (2021)).

Here, Chief Judge Sutton explained, “Congress did not ‘clearly’ grant [OSHA]

authority to impose this vaccine-or-test mandate.” Id. at *2. As a matter of statutory

interpretation, Chief Judge Sutton observed that the OSH Act “covers only

workplace-specific hazards and permits only workplace-specific safety measures.” Id.

at *7 (emphasis removed). The opinion looked to the Act’s title (Occupational Safety

and Health Act), Congress’s focus on protecting “‘employees’ from dangers that arise

directly out of the workplace,” and various provisions in the Act that clearly limited

the Act’s scope to workplace-specific hazards. Id.; see also 29 U.S.C. § 651(b) (focusing

on “working conditions” and “personal injuries and illnesses arising out of work

situations”); id. § 653(a), (b) (applying the Act to “employment performed in a

workplace” and “working conditions of employees”); id. § 657(c) (seeking to prevent

“occupational accidents and illnesses” and “work-related deaths, injuries and

illnesses”). In Chief Judge Sutton’s view, the words “hazards,” “substances,” and

“agents” should not be read “in isolation,” but in context, which “illuminates

meaning.” In re OSHA, 2021 WL 5914024, at *7 (Sutton, C.J., dissenting from the

denial of initial hearing en banc).

The opinion also looked to OSHA’s past permanent and emergency standards,

which confirmed that the OSH Act is limited to workplace-specific remedies. Id.

(Sutton, C.J., dissenting from the denial of initial hearing en banc) (listing permanent

standards focusing on workplace issues and ETSs “addressing exposures solely

because of . . . the workplace”).

In addition, said Chief Judge Sutton, the OSH Act’s use of the term “necessary”

requires an ETS to be not “just appropriate” but “indispensable or essential” to

address a grave danger. id. at *9. No court has “authority to uphold [the Mandate]

as ‘necessary’” because OSHA never “made that finding [itself] under the correct

interpretation of the law.” Id.; see also SEC v. Chenery Corp., 318 U.S. 80, 87 (1943).

Furthermore, the opinion observed that OSHA cannot show—under “any

standard of review”—that the vaccine-or-test mandate is indispensable to protect (1)

“retired individuals from a workplace they no longer visit”; (2) “vaccinated working

people from a risk [OSHA] does not consider grave; and (3) “unvaccinated working

people from themselves based on [a] highly personal medical decision[ ].” In re OSHA,

2021 WL 5914024, at *11 (Sutton, C.J., dissenting from the denial of initial hearing

en banc). The Mandate’s one-size-fits-all approach “[a]pplying to 2 out of 3 privatesector employees in America, in workplaces as diverse as the country itself” fails to

appreciate that the risk level varies among employees. Id. at *10 (quoting BST

Holdings, 17 F.4th at 615). Chief Judge Sutton said lifting the Fifth Circuit’s stay

would require a court to resolve whether “compelling faith-sensitive employers to

administer [the Mandate]” violates the First Amendment and RFRA. Id. at *11.

The opinion easily concluded that the challengers would face irreparable

injuries: “irreversible vaccination”; “uncompensated testing costs”; “lost job[s]”;

“$3 billion in compliance costs”; and “difficulties . . . in competing with smaller

companies.” Id. at *14. And while acknowledging the interest in combatting COVID19, the opinion concluded that OSHA lacks authority to issue the Mandate. Id.

In a separate opinion, Judge Bush also explained that Congress “has no

authority under the Commerce Clause to impose, much less to delegate the imposition

of, a de facto national vaccine mandate upon the American public.” Id. at *15 (Bush,

J., dissenting from the denial of initial hearing en banc).

3. On December 17, 2021, the Sixth Circuit’s motions panel lifted the Fifth

Circuit’s stay. In the panel’s view, the OSH Act did in fact grant OSHA the authority

to issue the Mandate. Op. 11–12 . Moreover, the panel wholesale accepted the

government and Union Petitioners’ justifications for the issuance of an ETS. Id. at

19, 24–25. Critically, the panel relegated Religious Institutions’ arguments to a

footnote without addressing them. Id. at 31 n.10. Judge Larsen sharply dissented.

REASONS FOR GRANTING THE APPLICATION

The Court should stay the OSHA Mandate.

The Court considers (1) the

likelihood of success on the merits, (2) irreparable harm to the applicants absent a

stay, and (3) the balance of equities and the public interest. Nken v. Holder, 556 U.S.

418, 435 (2009). The first two factors are “the most critical.” Id. at 434. The balance

of harms and the public interest analysis “merge[s] when the [g]overnment is the

opposing party.” Id. at 435. And this Court recently made it clear that the public

interest factor—even “a strong interest in combating the spread of the COVID-19

Delta variant”—does not “permit agencies to act unlawfully.” Ala. Ass’n of Realtors,

141 S. Ct. at 2490; see also Mexichem Specialty Resins, Inc. v. EPA, 787 F.3d 544, 562

(D.C. Cir. 2015) (Kavanaugh, J., dissenting in part) (observing that a stay should

issue under 5 U.S.C. § 705 where the EPA acted erroneously, and challengers showed

the likelihood of success and irreparable harms). Religious Institutions easily satisfy

these factors.

Religious Institutions are likely to succeed on the merits.

Religious Applicants are likely to succeed on the merits. First, the Mandate

exceeds OSHA’s authority. Second, the Mandate violates the First Amendment and

RFRA. Third, there is a reasonable probability that the Court will grant review.

The Mandate exceeds OSHA’s authority.

OSHA lacks jurisdiction to regulate religious non-profit

institutions.

OSHA lacks jurisdiction to regulate religious non-profit institutions, because

they are not “employers” under the OSH Act.

Both the plain text and the

constitutional-avoidance canon confirm this reading. Nevertheless, the Mandate

exceeds the OSH Act by seeking to regulate “all employers with a total of 100 or more

employees,” including religious non-profits. See 29 C.F.R. § 1910.501(b)(1).

Text. The OSH Act defines an “employer” as “a person engaged in a business

affecting commerce who has employees.” 29 U.S.C. § 652(5) (emphasis added).

Congress did not define the term “business.” When Congress does not define a term,

this Court “normally seeks to afford the law’s terms their ordinary meaning at the

time Congress adopted them.” Niz-Chavez v. Garland, 141 S. Ct. 1474, 1480 (2021).

The term “business”—when used in a commercial context—refers to for-profit

businesses.

See, e.g., Business, Ballentine’s Law Dictionary (3d ed. 1969) (“[A]

commercial enterprise, conducted for monetary reward, as distinguished from a

religious

charitable

enterprise.”);

Business,

Random

House

Dictionary

(Unabridged ed. 1967) (“[T]he purchase and sale of goods in an attempt to make a

profit” or “a person, partnership, or corporation engaged in a commerce,

manufacturing, or a service; profit-seeking enterprise or concern.”); Business,

American Dictionary of English Language (1970) (“[T]hat which occupies the time,

attention and labor of men, for the purpose of profit or improvement.”); see also

Business, Black’s Law Dictionary (11th ed. 2019) (“A commercial enterprise carried

on for profit.”). Therefore, the phrase “a person engaged in a business affecting

commerce,” 29 U.S.C. § 652(5), refers to for-profit corporations, not churches and

religious non-profits.

This interpretation is confirmed by the fact that Congress knows how to

broadly define covered entities under the Commerce Clause but has not done so here.

For example, the Sherman Act states that “[e]very person”—not just an “employer”

or “a person engaged in a business affecting commerce”—who conspires to restrain

trade or commerce shall be guilty of a felony. 15 U.S.C. § 1. The Sherman Act’s broad

definition covers non-profit organizations. NCAA v. Alston, 141 S. Ct. 2141, 2151

(2021). And under Title VII, which covers non-profits, Congress broadly defined an

“employer” as “a person engaged in an industry affecting commerce.” 42 U.S.C.

§ 2000e(b). “The term ‘industry affecting commerce’ means any activity, business, or

industry in commerce.” Id. § 2000e(h) (emphasis added); but see 42 U.S.C. § 2000e1(a) (exemptions for religious employers).

OSHA has erroneously relied on the OSH Act’s “purpose” and legislative

history to include non-profits under its jurisdiction in its coverage regulation.

29 C.F.R. § 1975.3(d), 1975.4(b)(4). And the Mandate applies this understanding,

whether or not it mentions the coverage regulation. 29 C.F.R. § 1910.501(b)(1).

OSHA latched onto Congress’s statement that it wished “to assure so far as possible

every working man and woman in the Nation safe and healthful working conditions.”

29 U.S.C. § 651(b) (emphasis added). Stretching the phrase “so far as possible,”

OSHA erroneously interpreted the term “business’” as “any commercial or

noncommercial activity affecting commerce.” 29 C.F.R. § 1975.3(d). And OSHA

further erroneously rejected what it called an “economic test[ ]” between for-profit

and non-profit entities. 29 C.F.R. § 1975.4(b)(4).

This is impermissible. “[W]hat finally matters is the text, and in reading texts

[the Court] must remember that ‘no legislation pursues its purposes at all costs.’”

Home Depot USA, Inc. v. Jackson, 139 S. Ct. 1743, 1755 (2019) (Alito, J., dissenting)

(quoting Rodriguez v. United States, 480 U.S. 522, 525–26 (1987)). And “the best

evidence of a statute’s purpose is the statutory text.” W. Va. Univ. Hosps., Inc. v.

Casey, 499 U.S. 83, 98 (1991), superseded by statute 42 U.S.C. § 1988(c); Little Sisters

of the Poor v. Pennsylvania, 140 S. Ct. 2367, 2380 (2020) (“Our analysis begins and

ends with the text.”); Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv.

L. Rev. 2118, 2149 (2016) (diagnosing problems with legislative history).

Interpretative canon.

The constitutional-avoidance canon also supports

Religious Institutions’ reading. See NLRB v. Cath. Bishop of Chi., 440 U.S. 490, 504

(1979) (narrowly construing the National Labor Relations Act to avoid the

“consequent serious First Amendment questions that would follow” from allowing

NLRB to exercise jurisdiction over Catholic schools); Van Buren v. United States, 141

S. Ct. 1648, 1661 (2021) (when text is clear, although interpretative canons are not

“in play,” they “underscore[ ] the implausibility of the Government’s’ interpretation”).

As more fully described below, interpreting the OSH Act to cover religious

non-profits—and to allow OSHA to impose employment conditions like the

Mandate—would invite interference with Religious Institutions’ religious mission,

internal management, and employment decisions. See, e.g., Cath. Bishop, 440 U.S.

at 504; Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2061 (2020);

Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116 (1952); Presiding Bishop v. Amos,

483 U.S. 327, 342 (1987) (Brennan, J., concurring in the judgment).

OSHA concedes the serious First Amendment issues stemming from OSHA’s

jurisdictional grab.

OSHA’s coverage regulation states that, OSHA disclaims

jurisdiction over “[a]ny person” who “perform[]s religious services or participate[]s in

them in any degree.” 29 C.F.R. § 1975.4(c)(1). OSHA’s attempt to exempt certain

religious institutions confirms there are “consequent serious First Amendment

questions that would follow.”1 Cath. Bishop, 440 U.S. at 504. It bears mentioning

that Religious Institutions deeply care about their workers’ safety. With or without

a federal mandate, they may freely institute voluntary safety measures, and/or could

be subject to state and local laws. See Doug Laycock, Towards a General Theory of

the Religion Clauses, 81 Colum. L. Rev. 1373, 1398 (1992) (“Churches may object to

regulation on church autonomy grounds even when their official doctrine seems to

support the regulation.”). In sum, the Mandate exceeds the OSH Act by attempting

to assert jurisdiction over religious non-profits—both independently and by applying

the erroneous coverage regulation.

1 This coverage provision is also unlawful because OSHA lacks the authority to define

what constitutes “secular activities” or “religious services” for a religious institution.

29 C.F.R. § 1975.4(c)(1). OSHA has “neither competence nor legitimacy” to make such

inquiry. Colo. Christian Univ. v. Weaver, 534 F.3d 1245, 1265 (10th Cir. 2008). “The

very process of such an inquiry” violates the First Amendment. Duquesne Univ. of

the Holy Spirit v. NLRB, 947 F.3d 824, 835 (D.C. Cir. 2020) (cleaned up).

OSHA lacks authority to issue sweeping non-workplace

public health measures.

As eleven Circuit Judges of two Courts of Appeals have already explained, the

OSH Act does not authorize OSHA to issue a nationwide vaccine-or-test mandate.

Text. The plain text of the OSH Act does not allow such powers. As a threshold

matter, Congress created OSHA and the Department of Labor to regulate the

workplace, not to impose sweeping public health measures. See In re OSHA, 2021

WL 5914024, at *7 (Sutton, C.J., dissenting from the denial of initial hearing en banc)

(examining the OSH Act’s title); Op. 51 (Larsen, J., dissenting); BST Holdings, 17

F.4th at 619 (“[O]ccupational safety administrations do not make health policy.”).

The OSH Act concerns “occupational safety or health standard[s],”. 29 U.S.C. § 655(a)

(emphasis added); id. § 651(a) (Congress focused on “personal injuries and illnesses

arising out of work situations” (emphasis added)). As Chief Judge Sutton observed

after carefully cataloguing various OSH Act and OSHA regulatory provisions, the

OSH Act is limited to “protect[ing] ‘employees’ from dangers that arise directly out of

the workplace and addresses only workplace conditions.” In re OSHA, 2021 WL

5914024, at *7 (Sutton, C.J., dissenting from the denial of initial hearing en banc);

see also Forging Indus. Ass’n v. Sec’y of Lab., 773 F.2d 1436, 1442 (4th Cir. 1985)

(“OSHA’s authority is limited to ameliorating conditions that exist in the

workplace.”).

And the ETS-provision is specifically concerned with “substances or agents

determined to be toxic or physically harmful or . . . new hazards.”

29 U.S.C.

§ 655(c)(1)(A). Reading the entire OSH Act in context confirms the narrow reading.

First, as the Fifth Circuit observed, the word “toxic” counsels interpreting

“substances or agents” to mean toxic or poisonous, not anything that is harmful. BST

Holdings, 17 F.4th at 613. Furthermore, as Chief Judge Sutton explained, the words

“hazards,” “substances,” and “agents” must be read in the context of various

provisions that discuss workplace injuries, 29 U.S.C. § 651(a), working conditions, id.

§ 653, and work-related deaths, id. § 657(c)(2). In re OSHA, 2021 WL 5914024, at *7

(Sutton, C.J., dissenting from the denial of initial hearing en banc).

In sum, the OSH Act cannot be naturally read to authorize mandatory

vaccination or alternative mandates to curtail a disease outbreak happening outside

the workplace by mandating that employees undergo medical procedures outside the

workplace.

See Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 569 (2012)

(preferring a “far more natural” reading of statutory terms).2

The government—until recently—confirmed this reading of the OSH Act.

OSHA had previously stated that COVID-19 “is not uniquely a workplace hazard.”

D.C. Cir. Br. 8. The Department of Labor also agreed 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.” Id. at 33–34.

Although OSHA’s “bloodborne-pathogen rule,” requiring employers to make

Hepatitis B vaccines available, was upheld, see Am. Dental Ass’n v. Martin, 984 F.2d

823, 830–31 (7th Cir. 1993), this rule did not mandate vaccination. See id. at 825.

Moreover, OSHA used the notice-and-comment procedure, not the emergency

procedure. Id. at 824.

And the long catalogue of its permanent and emergency standards confirms

that OSHA lacks authority to regulate non-workplace issues. See In re OSHA, 2021

WL 5914024, at *8 (Sutton, C.J., dissenting from the denial of initial hearing en banc)

(collecting regulations). “A ‘lack of historical precedent’ tends to be the most ‘telling

indication’ that no authority exists.” Id. at *14 (quoting Free Enter. Fund v. Pub. Co.

Acct. Oversight Bd., 561 U.S. 477, 505 (2010)). Indeed, “[t]he law hasn’t changed,

only an agency’s interpretation of it.” Guedes v. ATF, 140 S. Ct. 789, 790 (2020)

(Statement of Gorsuch, J.).

Interpretative principles. Various interpretative principles counsel in favor

of rejecting OSHA’s broad reading of the OSH Act.

Under the “major questions doctrine,” courts “expect Congress to speak clearly

when authorizing an agency to exercise powers of ‘vast economic and political

significance.’” Ala. Ass’n of Realtors, 141 S. Ct. at 2489 (quoting Util. Air Regul. Grp.

v. EPA, 573 U.S. 302, 324 (2014)). With nearly 80 million employees affected and

nearly $3 billion in compliance cost, the government cannot seriously dispute that

the OSHA mandate carries a vast economic and political significance. Eleven Circuit

Judges have already observed that the major questions doctrine applies here, and

that OSHA failed to point to a clear statement by Congress. See BST Holdings, 17

F.4th at 617; In re OSHA, 2021 WL 5914024, at *1 (Sutton, C.J., dissenting from the

denial of initial hearing en banc); Op. 53 (Larsen, J., dissenting). The panel, however,

flouted this rule because it thought that granting OSHA the authority to issue a

nationwide vaccine mandate was “not an enormous expansion of its regulatory

authority.” Panel. Op. 15. This was erroneous.

And the Mandate invokes preemption and “intrudes into an area that is the

particular domain of state law”: health regulations. Ala. Ass’n of Realtors, 141 S. Ct.

at 2489; see also Hillsborough Cnty., Fla. v. Automated Med. Lab’ys, Inc., 471 U.S.

707, 719 (1985) (“[T]he regulation of health and safety matters is primarily, and

historically, a matter of local concern”). The Supreme Court’s “precedents require

Congress to enact exceedingly clear language if it wishes to significantly alter the

balance between federal and state power.” Ala. Ass’n of Realtors, 141 S. Ct. at 2489

(emphasis added) (quoting U.S. Forest Serv. v. Cowpasture River Pres. Ass’n, 140 S.

Ct. 1837, 1850 (2020)). There is no such “exceedingly clear language” in the OSH Act.

See also In re OSHA, 2021 WL 5914024, at *6 (Sutton, C.J., dissenting from the denial

of initial hearing en banc) (invoking the “federalism clear-statement canon”).

In addition, interpreting the OSH Act to authorize a nationwide vaccine

mandate also violates Article I and the Commerce Clause. Article I, Section 1 of the

Constitution states that “[a]ll legislative Powers . . . shall be vested in a Congress.”

U.S. Const. art. I, § 1. It “does not permit Congress to delegate them to another

branch of the Government.” Gundy v. United States, 139 S. Ct. 2116, 2130 (2019)

(Alito, J., concurring in the judgment); cf. Indus. Union Dep’t, AFL-CIO v. Am.

Petroleum Inst., 448 U.S. 607, 687–88 (1980) (Rehnquist, J., concurring in the

judgment) (identifying a non-delegation problem in the OSH Act).

By claiming

authority to dictate national healthcare policy, OSHA has illegitimately seized an

uncabined legislative power. See also Op. 54 (Larsen, J., dissenting).

And the federal government does not have general police powers. See BST

Holdings, 17 F.4th at 617. Accepting the government’s view of the Commerce Clause

would “convert” it “to a general police power of the sort retained by the States” that

the Supreme Court has rejected since United States v. Lopez, 514 U.S. 549, 567

(1995). See also In re OSHA, 2021 WL 5914024, at *6 (Sutton, C.J., dissenting from

the denial of initial hearing en banc). In addition, the Mandate seeks to “bring

countless decisions an individual could potentially make within the scope of federal

regulation.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 552 (2012). This is

so whether the decision to remain unvaccinated is viewed as “inactivity,” BST

Holdings, 17 F.4th at 617, or as a “non-commercial activity,” In re OSHA, 2021 WL

5914024, at *18 (Bush, J., dissenting from the denial of initial hearing en banc). The

panel failed to appreciate that its interpretation accorded the federal government

general police powers. See Op. 32.

In sum, as a matter of statutory interpretation, OSHA lacks authority to issue

sweeping non-workplace, public health measures like the Mandate.

OSHA also cannot justify the Mandate under the ETS

provision.

To issue an ETS, OSHA must determine that an ETS is necessary to protect

employees from the grave danger of exposure to toxic substances and agents or new

hazards. 29 U.S.C. § 655(c)(1). OSHA failed to do so.

Lack of grave danger. COVID-19 is not “the kind of grave danger [the OSH

Act] contemplates.” BST Holdings, 17 F.4th at 613. OSHA itself “concede[d] that the

effects of COVID-19” ranges from “mild” to “critical,” id. at 614 (citing 86 Fed. Reg.

61402–03), and that “the risk to vaccinated employees continuing to work with

unvaccinated employees is ‘not’ a ‘grave danger,’” In re OSHA, 2021 WL 5914024, at

*10 (Sutton, C.J., dissenting from the denial of initial hearing en banc) (quoting 86

Fed. Reg. 61434). And nearly 85% of adults—and 95% of seniors—are partially

vaccinated. The “ongoing” nature of emerging variants and “medical developments

and innovations” make it all the more improbable that COVID-19 is the type of grave

danger that the emergency standard provision was meant to address. Id. at *11.

OSHA has severely undermined the finding of “gravity” by exempting

employers with fewer than 100 employees. OSHA concedes that this was because it

was “less confident that smaller employers can [implement the ETS] without undue

disruption.” 86 Fed. Reg. 61403. “[A]dministrative capacity” concerns have nothing

to do with emergency and grave danger. Id. “If [OSHA] suddenly realized that

exposure to a new chemical created a ‘grave’ danger of cancer, it is difficult to imagine

that anyone would permit an emergency rule targeting the problem to apply only to

companies with over 100 employees in order to save the other companies money.” In

re OSHA, 2021 WL 5914024, at *13 (Sutton, C.J., dissenting from the denial of initial

hearing en banc).

Failure to show necessity. The term “necessary” in the OSH Act’s emergency

provision means indispensable, not “just appropriate.”

Id. at *9 (Sutton, C.J.,

dissenting from the denial of initial hearing en banc); see also Op. 44 (Larsen, J.,

dissenting). Because OSHA failed to analyze why the vaccine-or-test mandate was

indispensable to protecting unvaccinated workers, the Mandate cannot be upheld

under any standard of review. See Chenery, 318 U.S. at 87 (requiring agency actions

to be upheld on grounds invoked by the agency).

Eleven Circuit Judges have explained that the Mandate fails to account for

differing age and work environment. See In re OSHA, 2021 WL 5914024, at *10

(Sutton, C.J., dissenting from the denial of initial hearing en banc); BST Holdings,

17 F.4th at 615. Under “any standard of review,” OSHA cannot show that the

Mandate is indispensable to protecting (1) “retired individuals from a workplace they

no longer visit”; (2) “vaccinated working people from a risk [OSHA] does not consider

grave”; and (3) “unvaccinated working people from themselves based on [a] highly

personal medical decision.”[ ] In re OSHA, 2021 WL 5914024, at *11 (Sutton, C.J.,

dissenting from the denial of initial hearing en banc); see also Op. 49 (Larsen, J.,

dissenting) (death rate for unvaccinated people between 18 and 29 is equivalent to

vaccinated persons between 50 and 64).

Moreover, OSHA—until recently—concluded that “tailored guidance and

enforcement of the general duty clause [of the OSH Act] and existing standards, plus

robust legal protections for complaints, [was] the best approach” to addressing

COVID-19. D.C. Cir. Br. 34; see also Encino Motorcars, LLC v. Navarro, 579 U.S.

211, 2212 (2016) (“Unexplained inconsistency . . . is a reason for holding an

interpretation to be an arbitrary and capricious change from agency practice.”

(cleaned up)).

Critically, the availability of “many less intrusive, more tailored

protective measures”—many of which OSHA has preferred until recently—show that

the vaccine-or-test mandate is not indispensable. In re OSHA, 2021 WL 5914024, at

*10 (Sutton, C.J., dissenting from the denial of initial hearing en banc).

Moreover, the arbitrary 100-employee threshold—based on “administrative

capacity”—belies OSHA’s assertion that the mandate was necessary. It may be true

that “companies of 100 or more employe[e]s will be better able to administer (and

sustain) the Mandate. . . . But this kind of thinking belies the premise that any of this

is truly an emergency.” BST Holdings, 17 F.4th at 616. In sum, OSHA “cannot use

its ETS powers as a stop-gap measure.” Asbestos Info. Ass’n, 727 F.2d at 422. But

this is exactly what OSHA has done here.

The Mandate violates the First Amendment and RFRA.

The

Mandate

impermissibly

dictates

Religious

Institutions’ employment decisions and frustrates their

religious mission.

The First Amendment recognizes religious autonomy and “gives special

solicitude to the rights of religious organizations.”

Hosanna-Tabor Evangelical

Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 189 (2012). The religious autonomy

doctrine(s) broadly guarantee religious institutions’ “independence from secular

control or manipulation,” Kedroff, 344 U.S. at 116, and “autonomy with respect to

internal management decisions that are essential to the institution’s central

mission.” Our Lady, 140 S. Ct. at 2060. Only “a component of this autonomy is the

selection of the individuals who play certain key roles.” Id. Properly understood,

religious autonomy ensures that “a religious community defines itself”—including by

determining what “activities are in furtherance of” its mission and who gets to

“conduct them.” Amos, 483 U.S. at 342 (Brennan, J., concurring in the judgment).

Religious Institutions include two evangelical Christian seminaries (The

Southern and Asbury Seminaries), a consolidated Catholic school system (Bishop

O’Gorman), two prominent private Christian schools (The King’s Academy and

Cambridge Christian School), a faith-based non-profit organization (HSLDA), and a

membership organization that represents the interests of religious non-profit

organizations and for-profit businesses (CEA). These organizations exercise their

faith by providing seminary training, providing Christian and Catholic education,

and operating non-profit ministries and for-profit businesses in accordance with

Christian values. Austin ¶ 6; Blankenship ¶ 7; Groos ¶ 10; Martin ¶ 7; Minks ¶ 6;

Smith ¶ 6; Royce ¶ 29.3

OSHA “commandeers” Religious Institutions “to compel [their] employees” to

comply with the mandate. BST Holdings, 17 F.4th at 617. To ensure compliance,

Religious Institutions must probe their ministers’ and employees’ intimate and

personal medical decisions that often implicate their religious beliefs.

This is

precisely the “secular control or manipulation” that the First Amendment prohibits.

Kedroff, 344 U.S.at 116. In addition, the mandate violates the First Amendment by

setting the “terms and conditions of employment” to work for Religious Institutions,

3 CEA also represents for-profit members who have free-exercise and RFRA claims.

References to Religious Institutions include references to CEA for-profit or non-profit

members.

Cath. Bishop, 440 U.S. at 502–03, and interfering with their ability to “select[] . . .

the individuals who play certain key roles,” Our Lady, 140 S. Ct. at 2060.

The faculty of the seminaries and the Catholic and Christian schools are

clearly “ministers” under Our Lady, 140 S. Ct. at 2055. There are other staff members

who “play certain key roles” and fall under the ministerial exception. Id. at 2060; see

also Austin ¶ 30; Blankenship ¶ 22; Groos ¶ 40; Martin ¶ 38; Minks ¶ 33; Smith ¶ 25;

Royce ¶ 30. The Mandate requiring them to get vaccinated or be subjected to weekly

testing effectively imposes employment conditions akin to the “various Acts of

Uniformity . . . which dictated” that the ministers subscribe to certain beliefs (e.g., no

moral qualms regarding vaccination) and obtain licenses (e.g., proof of vaccination or

weekly tests). See Our Lady, 140 S. Ct. at 2061.

And the interference with religious organizations’ ability to hire any employee

to “conduct” “activities . . . in furtherance of” their religious missions violates religious

autonomy and the co-religionist doctrine.

Amos, 483 U.S. at 342 (Brennan, J.,

concurring in the judgment); Hall v. Baptist Mem’l Health Care Corp., 215 F.3d 618,

622–23 (6th Cir. 2000) (acknowledging a “constitutionally-protected interest . . . in

making religious-motivated employment decisions);” Little v. Wuerl, 929 F.2d 944,

945–46 (3d Cir. 1991); Kennedy v. St. Joseph’s ministriesM, Inc., 657 F.3d 189, 195

(4th Cir. 2011); EEOC v. Miss. Coll., 626 F.2d 477, 479–80 (5th Cir. 1980); Spencer v.

World Vision, Inc., 633 F.3d 723, 731–32 (9th Cir. 2011) (O’Scannlain, J., concurring);

id. at 742 (Kleinfeld, J., concurring); Killinger v. Samford Univ., 113 F.3d 196, 200–

01 (11th Cir. 1997). The Mandate violates the First Amendment.

The Mandate falters under RFRA’s strict scrutiny.

RFRA prohibits the government from “substantially burden[ing] a person’s

exercise of religion” without showing that the action furthers a compelling

governmental interest by the least restrictive means. 42 U.S.C. § 2000bb-1(a)-(b).

“Congress enacted RFRA . . . to provide very broad protection for religious liberty.”

Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 693 (2014). Those protections

cover for-profit and non-profit entities and go “far beyond what [the Supreme] Court

ha[d] held [was] constitutionally required.” Id. at 706. The Mandate substantially

burdens Religious Institutions’ exercise of religion, and OSHA cannot clear the high

threshold to justify that burden.

Substantial burden.

The government substantially burdens a person’s

exercise of religion if it “demands that [he] engage in conduct that seriously violates

[his] religious beliefs” with the threat of “economic consequences.” Id. at 720; see also

Thomas v. Rev. Bd. of Ind. Emp. Sec. Div., 450 U.S. 707, 717–18 (1981) (“[A] burden

upon religion exists” if the state “put[s] substantial pressure on an adherent to modify

his behavior and to violate his beliefs.”).

Here, OSHA “demands” Religious Institutions to comply with the mandate or

face “substantial economic consequences.” Hobby Lobby, 573 U.S. at 720 ($2,000 in

penalty per employee constituted a substantial burden). The Mandate carries up to

nearly $14,000 in penalty per violation.

Although Religious Institutions do not categorically oppose vaccines, their

Christian faith requires them to respect their employees’ conscience and religious

decisions. Austin ¶ 23; Blankenship ¶ 17; Groos ¶¶ 24, 28; Martin ¶¶ 14, 22; Minks

¶¶ 16, 23; Smith ¶¶ 18, 20; Royce ¶¶ 24, 30-31, 35. And Religious Institutions’ faith

precludes them from burdening their unvaccinated employees’ religious beliefs for

remaining unvaccinated. Hobby Lobby, 573 U.S. at 691 (desire not to be complicit in

providing contraception constituted sincerely held belief); Little Sisters, 140 S. Ct. at

2383 (explaining that “the contraceptive mandate violated RFRA as applied to

entities with complicity-based objections”); Sambrano v. United Airlines, Inc., No. 2111159, 2021 WL 5881819, at *2 (5th Cir. Dec. 13, 2021) (Ho, J., dissenting) (“Forcing

individuals to choose between their faith and their livelihood imposes an obvious and

substantial burden on religion.”). Austin ¶ 23; Blankenship ¶ 17; Groos ¶ 34; Martin

¶ 30; Minks ¶ 27; Smith ¶ 20; Royce ¶¶ 28, 47.

If Religious Institutions pass the testing costs to their employees, Religious

Institutions will burden their ministers’ and employees’ conscience and religious

beliefs and, as a result, “violate [Religious Institutions’] beliefs” regarding conscience.

Thomas, 450 U.S. at 717–18; see also Little Sisters, 140 S. Ct. at 2383.

If Religious Institutions decide to incur the employees’ testing costs, the

cumulative cost of testing the unvaccinated employees for perpetuity will be

substantial. In Hobby Lobby, the Supreme Court found a substantial burden where

“the contraceptive mandate force[d] [religious businesses] to pay an enormous sum of

money . . . if they insist[ed] on providing insurance coverage in accordance with their

religious beliefs.” 573 U.S. at 726. Here, Religious Institutions will similarly have to

pay a large sum in testing costs to insist on maintaining their Christian beliefs on

conscience—i.e., not imposing a mandatory vaccination requirement and not

burdening unvaccinated employees’ beliefs by making them pay for testing.

Although the government makes it seem as though the mandate offers neutral

choices, OSHA admits that the “[Mandate] is designed to strongly encourage

vaccination,” 86 Fed. Reg. 61,532. See also In re OSHA, 2021 WL 5914024, at *4

(Sutton, C.J., dissenting from the denial of initial hearing en banc) (behind “the veil,”

the ETS “will operate much more like a vaccine mandate than a vaccine option”). As

Judge Larsen correctly observed, the “conscious[ ] design” was to make keeping

unvaccinated employees “less palatable.” Op. 40 (Larsen, J., dissenting). This design

pressures employers to disfavor and/or further pressure unvaccinated employees—

and “to modify [their] behavior and to violate [their] beliefs.” Thomas, 450 U.S. at

717–18.

Furthermore, Religious Institutions exercise their faith by providing

seminary training, providing Catholic and Christian education, engaging in nonprofit ministries, and operating for-profit businesses according to Christian values.

The Mandate will force Religious Institutions to take faculty out of classrooms, and

staff out of operating these organizations and businesses—for testing on a weekly

basis or for non-compliance—which will significantly disrupt Religious Institutions’

mission, including for-profit businesses’ operations and exercise.

Austin ¶ 30;

Blankenship ¶ 22; Groos ¶ 40; Martin ¶ 38; Minks ¶ 33; Smith ¶ 25; Royce ¶ 48. This

burden is substantial—not mere inconvenience—because Religious Institutions’

employees are not fungible.

Lack of compelling interest/narrow tailoring. OSHA cannot show a

compelling interest or narrow tailoring. When the “vast majority” of individuals

engaging in similar conduct are exempt, narrow tailoring “falters.” Dahl v. W. Mich.

Univ., 15 F.4th 728, 735 (6th Cir. 2021); Tandon v. Newsom, 141 S. Ct. 1294, 1297

(2021) (“Where the government permits other activities . . . , it must show that the

religious exercise at issue is more dangerous than those activities . . . .”).

There is no semblance of a tailoring—much less a narrow tailoring. Indeed,

OSHA’s mandate is underinclusive and fails to cover those engaged in “comparable

activities”: other secular and religious employers with fewer than 100 employees. Cf.

Tandon, 141 S. Ct. at 1296 (“treating[] any comparable secular activity more

favorably than religious exercise” requires strict scrutiny). OSHA’s goal appears to

be to vaccinate 22.7 million workers. In re OSHA, 2021 WL 591024, at *11 (Sutton,

C.J., dissenting from the denial of initial hearing en banc) (citing 86 Fed. Reg. 61433,

61472). Yet, if increasing the vaccination number is the goal, OSHA cannot explain

why it must violate Religious Institutions’ religious beliefs to achieve that goal when

it exempted 1 out of 3 private employers in the country. Cf. Dr. A. v. Hochul, No.

21A145, 2021 WL 5873126, at *5 (U.S. Dec. 13, 2021) (Gorsuch, J., dissenting from

the denial of application for injunctive relief) (finding no narrow tailoring when New

York failed to explain why it needed to violate plaintiffs’ religious beliefs to meet an

unstated vaccination goal).

There are also less restrictive alternatives that do not violate Religious

Institutions’ beliefs. Namely, instead of this convoluted cost-shifting scheme, OSHA

could simply pay for weekly testing. But it has not done so. For these reasons, the

Mandate violates RFRA.

There is a reasonable probability that the Court will grant

review.

Justice Barrett (joined by Justice Kavanaugh) recently explained that the

likelihood-of-success factor “encompass[es] not only an assessment of the underlying

merits but also a discretionary judgment about whether the Court should grant

review in the case.” Does 1–3 v. Mills, 142 S. Ct. 17, 18 (2021) (Barrett, J., concurring

in the denial of application for injunctive relief); see also Hollingsworth v. Perry, 558

U.S. 183, 190 (2010) (looking for “a reasonable probability that four Justices will

consider the issue sufficiently meritorious to grant certiorari”).

Religious Institutions can make this showing here. This Court has not

hesitated to grant emergency relief when the government vastly overstepped, thus

necessarily finding this consideration was met. For example, the Court stayed the

Clean Power Plan in West Virginia v. EPA, 577 U.S. 1126 (2016). Just as the EPA

overstepped the limits of the Clean Air Act in West Virginia, OSHA has far exceeded

the OSH Act here. And just recently, this Court granted the application to vacate the

district court’s stay of its order finding the CDC’s eviction moratorium unlawful. Ala.

Ass’n of Realtors, 141 S. Ct. at 2490.

Many parallels exist between the eviction moratorium case and this. In both

cases, there is a mismatch “between existing law and the . . . proposed policy.” In re

OSHA, 2021 WL 5914024, at *2 (Sutton, C.J.., dissenting from the denial of initial

hearing en banc). In the eviction moratorium case, “health agencies” sought to “make

housing policy”; here, “occupational safety administrations” seek to “make health

policy.” BST Holdings, 17 F.4th at 619. There, the President admitted that the policy

was “not likely to pass constitutional muster” but that “by the time it gets litigated,

it will probably give some additional time while we’re getting that $45 billion out to

people.” The White House, Remarks by President Biden on Fighting the COVID-19

Pandemic (Aug. 3, 2021), https://biturl.top/y2ymmq. Here, the White House Chief of

Staff retweeted a post stating that “OSHA doing this vaxx mandate as an emergency

workplace safety rule is the ultimate work-around for the Federal govt to require

vaccinations.” BST Holdings, 17 F.4th at 612 n.13 (citation omitted). If emergency

relief was warranted in West Virginia and Alabama Association of Realtors, then it is

also warranted here.

II.

Absent a stay, Religious Institutions will suffer irreparable injuries.

If the Court does not stay the Mandate, Religious Institutions will suffer

significant First Amendment and financial harms. “The loss of First Amendment

freedoms, for even minimal periods of time, unquestionably constitutes irreparable

injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). This includes the loss of the

“special solicitude,” Hosanna-Tabor, 565 U.S. at 189, “autonomy with respect to

internal management decisions,” Our Lady, 140 S. Ct. at 2050, and free exercise

rights under the First Amendment and RFRA. Furthermore, Religious Institutions

could lose their ministers, teachers, and employees to other employers with 99 or

fewer employees. For example, South Dakota and Florida public schools are not

subject to the Mandate and could attract teachers away from religious private schools

(Bishop O’Gorman, Cambridge Christian School, and The King’s Academy). Such loss

of competitiveness is irreparable, and it is so all the more if Religious Institutions

lose talented ministers and employees to other employers.

Religious Institutions will incur significant, irrecoverable cost. Thunder Basin

Coal Co. v. Reich, 510 U.S. 200, 220–21 (1994) (Scalia, J., concurring in part and

concurring in the judgment) (“[C]omplying with a regulation later held invalid almost

always produces the irreparable harm of nonrecoverable compliance costs”). OSHA

itself notes that there will be at least $3 billion exacted in compliance cost, BST

Holdings, 17 F.4th at 617, and Religious Institutions submit declarations estimating

significant compliance costs.

Austin ¶¶ 22–23, 30; Blankenship ¶¶ 16–17, 22;

Groos ¶¶ 34–35, 40; Martin ¶¶ 30–31, 38; Minks ¶¶ 27, 33; Smith ¶¶ 19–21, 25; Royce

¶¶ 40, 44, 48.

III.

The equities and the public interest favor a stay.

The public would greatly benefit from a stay of the Mandate. The public has

not had the benefit of providing comments before OSHA issued the Mandate. “[I]n

the absence of a notice-and-comment process, the federal courts are all that’s left.” In

re OSHA, 2021 WL 5914024, at *14 (Sutton, C.J., dissenting from the denial of initial

hearing en banc).

The Mandate will affect 80 million Americans and implicate

intimate and personal decisions concerning vaccination, which is irreversible.

OSHA will not be harmed by the stay. Even while acknowledging “a strong

interest in combating the spread of the COVID-19 [virus], . . . our system does not

permit agencies to act unlawfully even in pursuit of desirable ends.” Ala. Ass’n of

Realtors, 141 S. Ct. at 2490; In re OSHA, 2021 WL 5914024, at *15 (Sutton, C.J.,

dissenting from the denial of initial hearing en banc). And with nearly 85% of

adults—and 95% of seniors—partially vaccinated, the risk of COVID-19 is decreasing

even without the Mandate. Furthermore, the federal government suspended the

enforcement of the federal-employee mandate until after the holidays, showing that

there is no workplace emergency that must addressed immediately. Joe Walsh,

Federal Government Will Hold Off on Firing Unvaccinated Workers Until Next Year,

Forbes (Nov. 29, 2021), https://biturl.top/Yz2E3m.

IV.

Alternatively, the Court should treat this application as a petition for

certiorari before judgment and grant certiorari forthwith, and grant

a stay pending resolution of the petition.

The Court should also treat this application as a petition for certiorari before

judgment and grant certiorari. The Supreme Court Rule 11 allows the issuance of a

writ of certiorari in cases of “imperative public importance” that “justif[ies] deviation

from normal appellate practice” and “require[s] immediate determination in this

Court.” This is such a case.

First, there is a split between the Fifth Circuit and half of all active Judges of

the Sixth Circuit, and two members of the Sixth Circuit’s motions panel. The Fifth

Circuit held that OSHA exceeded its authority in issuing the Mandate.

BST

Holdings, 17 F.4th at 609. Eight Judges of the Sixth Circuit also concluded that the

Mandate exceeded OSHA’s authority. In OSHA, 2021 WL 5914024, at *2 (Sutton,

C.J., dissenting in the denial of initial hearing en banc). Two Judges on the Sixth

Circuit’s motions panel concluded otherwise.

This split is already becoming entrenched as courts are applying BST Holdings

in other cases. See Louisiana v. Becerra, No. 3:21-cv-3970, 2021 WL 5609846, at *6–

*7 (W.D. La. Nov. 30, 2021) (relying on BST Holdings in issuing a nationwide

injunction against the HHS from enforcing the CMS vaccine mandate), stay of

injunction granted in part No. 21-30734, 2021 WL 5913302, at *1, *3 (5th Cir. Dec.

15, 2021) (relying on BST Holdings to affirm the injunction); see also Florida v. HHS,

No. 21-14098-JJ, 2021 WL 5768796, at *24, *27, *33 (11th Cir. Dec. 6, 2021) (Lagoa,

J., dissenting) (relying on BST Holdings to state that the HHS should be enjoined

from enforcing the CMS mandate).

Second, OSHA’s invocation of the emergency powers invites the Court’s prompt

and careful merits determination. The use of an ETS is “[e]xtraordinary” and “should

be delicately exercised, and only in those emergency situations which require it.” Fla.

Peach Growers Ass’n, Inc. v. U.S. Dept. of Lab., 489 F.2d 120, 129–30 (5th Cir. 1974).

Although the Court may not need to grant certiorari before judgment every time

OSHA issues an ETS, this specific vaccine-or-test mandate places 80 million

individuals to “a choice between their job(s) and their jab(s),” imposes nearly $3

billion in compliance cost, “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.” BST Holdings, 17 F.4th at 617. This is of “imperative

public importance.” Sup. Ct. R. 11.

Furthermore, Chief Judge Sutton explained that an initial en banc review was

necessary because the Mandate “ends on May 5, 2022” and “little opportunity for

traditional en banc review” existed. In OSHA, 2021 WL 5914024, at *4 (Sutton, C.J.,

dissenting in the denial of initial hearing en banc). The same can be said of the

opportunity for this Court’s merits review. Yet, this Court’s definitive resolution of

OSHA’s authority is needed to end regularly occurring overreach by the federal

government. See Ala. Ass’n of Realtors, 141 S. Ct. at 2490. As seen in the Texas

Heartbeat Act case, the Court can grant certiorari before judgment and swiftly reach

a merits decision within a matter of a few months. See Whole Woman’s Health v.

Jackson, No. 21-463, 2021 WL 5855551 (U.S. Dec. 10, 2021).

Third, the Mandate violates the First Amendment and RFRA. This case is the

proper vehicle to properly determine the scope of the First Amendment and RFRA

protections in the context of an agency rulemaking and the remaining chapters of

government invocations of emergency. Last year, this Court reminded us that “even

in a pandemic, the Constitution cannot be put away and forgotten.” Roman Cath.

Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 68 (2020). And the need for such

reminders (through a proper vehicle) has been constant. See, e.g., Does, 142 S. Ct. at

18 (Barrett, J., concurring in the denial of application for injunctive relief) (preferring

a merits case); Dr. A, 2021 WL 5873126, at *7 (Gorsuch, J., dissenting from the denial

of application for injunctive relief) (discussing the need for “reminders”); cf.

Sambrano, 2021 WL 5881819, at *3 (discussing the “crisis of conscience” in Title VII

context). This is a great vehicle to do so.

CONCLUSION

For the foregoing reasons, the Court should issue an immediate,

administrative stay and grant this application to stay the OSHA mandate.

Alternatively, the Court should grant certiorari before judgment forthwith and grant

a stay pending resolution of the petition.

Respectfully submitted.

/s/ John J. Bursch

Ryan L. Bangert

Ryan J. Tucker

ALLIANCE DEFENDING FREEDOM

15100 N 90th Street

Scottsdale, AZ 85260

(480) 444-0020

rbangert@ADFlegal.org

John J. Bursch

Counsel of Record

David A. Cortman

Matthew S. Bowman

Frank H. Chang

ALLIANCE DEFENDING FREEDOM

440 First Street, NW, Suite 600

Washington, DC 20001

(202) 393-8690

jbursch@ADFlegal.org

dcortman@ADFlegal.org

mbowman@ADFlegal.org

fchang@ADFlegal.org

rtucker@ADFlegal.org

Counsel for Religious Institutions

CERTIFICATE OF SERVICE

A copy of this application was served by email and U.S. mail to the counsel

listed below in accordance with Supreme Court Rule 22.2 and 29.3:

Elizabeth B. Prelogar

Solicitor General of the United States

Department of Justice

950 Pennsylvania Ave NW, Room 5616

Washington, DC 20530-0001

SupremeCtBriefs@USDOJ.gov

Edmund C. Baird

Associate Solicitor of Labor for Occupational Safety and Health

Office of the Solicitor

U.S. Department of Labor

200 Constitution Avenue, NW, Room S-4004

Washington, DC 20210

zzSOL-Covid19-ETS@dol.gov

/s/ John J. Bursch

John J. Bursch

APPENDIX

Appendix Table of Contents

Exhibit 1 - U.S. Court of Appeals for the Sixth Circuit

Opinion in No. 21-7000 Lifting Stay, Issued December 17, 2021 ........................ App.1

Exhibit 2 - Declaration of Jonathan B. Austin ................................................... App.58

Exhibit 3 - Declaration of Bryan P. Blankenship ............................................... App.64

Exhibit 4 - Declaration of Kyle L. Groos ............................................................. App.69

Exhibit 5 - Declaration of Randal L. Martin ...................................................... App.78

Exhibit 6 - Declaration of Shawn Minks............................................................. App.85

Exhibit 7 - Declaration of J. Michael Smith ....................................................... App.93

Exhibit 8 - Declaration of Shannon O. Royce ..................................................... App.98

Exhibit 9 – COVID-19 Vaccination and Testing: Emergency Temporary

Standard, 86 Fed. Reg. 61402 (Nov. 5, 2021) ................................................... App.107

Case: 21-7000

Document: 386-2

Filed: 12/17/2021

Page: 1

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 21a0287p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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.

_________________________________________________________________

MASSACHUSETTS BUILDING TRADES COUNCIL, et al. (21-7000); BENTKEY

SERVICES, LLC (21-4027); PHILLIPS MANUFACTURING & TOWER COMPANY, et

al. (21-4028); COMMONWEALTH OF KENTUCKY, et al. (21-4031); ANSWERS IN

GENESIS, INC. (21-4032); SOUTHERN BAPTIST THEOLOGICAL SEMINARY, et al.

(21-4033); BST HOLDINGS, LLC, et al. (21-4080); REPUBLICAN NATIONAL

COMMITTEE (21-4082); ASSOCIATED BUILDERS AND CONTRACTORS, INC., et al.

(21-4083); MASSACHUSETTS BUILDING TRADES COUNCIL (21-4084); UNION OF

AMERICAN PHYSICIANS AND DENTISTS (21-4085); ASSOCIATED GENERAL

CONTRACTORS OF AMERICA, INC., et al. (21-4086); NATIONAL ASSOCIATION OF

BROADCAST EMPLOYEES & TECHNICIANS, THE BROADCASTING AND CABLE

TELEVISION WORKERS SECTOR OF THE COMMUNICATIONS WORKERS OF

AMERICA, LOCAL 51, AFL-CIO (21-4087); STATE OF MISSOURI, et al. (21-4088);

UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING

AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO

(21-4089); STATE OF INDIANA (21-4090); TANKCRAFT CORPORATION, et al. (214091); NATIONAL ASSOCIATION OF HOME BUILDERS (21-4092); JOB CREATORS

NETWORK, et al. (21-4093); UNITED FOOD AND COMMERCIAL WORKERS

INTERNATIONAL UNION, AFL/CIO-CLC, et al. (21-4094); SERVICE EMPLOYEES

INTERNATIONAL UNION LOCAL 32BJ (21-4095); MFA, INC., et al. (21-4096);

STATE OF FLORIDA, et al. (21-4097); AFT PENNSYLVANIA (21-4099); DENVER

NEWSPAPER GUILD, COMMUNICATIONS WORKERS OF AMERICA, LOCAL 37074,

AFL-CIO (21-4100); DTN STAFFING, INC., et al. (21-4101); FABARC STEEL

SUPPLY, INC., et al. (21-4102); MEDIA GUILD OF THE WEST, THE NEWS GUILDCOMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, LOCAL 39213 (21-4103);

NATURAL PRODUCTS ASSOCIATION (21-4108); OBERG INDUSTRIES, LLC (214112); BETTEN CHEVROLET, INC. (21-4114); TORE SAYS LLC (21-4115);

KENTUCKY PETROLEUM MARKETERS ASSOCIATION, et al. (21-4117); AARON

ABADI (21-4133),

Petitioners,

UNITED STATES DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH

ADMINISTRATION, et al.,

Respondents.

┐

│

> Nos. 21-7000

│

┘

/4027 /4028 /4031

/4032 /4033 /4080

/4082 /4083 /4084

/4085 /4086 /4087

/4089 /4088 /4090

/4091 /4093 /4092

/4095 /4094 /4096

/4097 /4099 /4100

/4101 /4102 /4103

/4108 /4112 /4114

/4115 /4117 /4133

App.001

(21 of 77)

Case: 21-7000

Nos. 21-7000, et al.

Document: 386-2

Filed: 12/17/2021

Page: 2

In re: MCP No. 165, Occupational Safety &

Health Admin. Rule on COVID-19 Vaccination

and Testing, 86 Fed. Reg. 61402

(22 of 77)

Page 2

On Emergency Motion to Dissolve Stay.

Multi-Circuit Petitions for Review from an Order of the U.S. Department of Labor,

Occupational Safety and Health Administration, No. OSHA-2001-0007.

Decided and Filed: December 17, 2021

Before: GIBBONS, STRANCH, and LARSEN, Circuit Judges.

_________________

COUNSEL

ON EMERGENCY MOTION TO DISSOLVE STAY AND REPLY: Sarah E. Harrington,

Michael S. Raab, Adam C. Jed, Brian J. Springer, Martin Totaro, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents. IN RESPONSE: R. Trent

McCotter, BOYDEN GRAY & ASSOCIATES, Washington, D.C., for Job Creators Network

Petitioners. Felicia K. Watson, NATIONAL ASSOCIATION OF HOME BUILDERS OF THE

UNITED STATES, Washington, D.C., for Petitioner National Association of Home Builders of

the United States. Christopher Wiest, CHRIS WIEST, ATTORNEY AT LAW, PLLC,

Crestview Hills, Kentucky, for Petitioner Betten Chevrolet, Inc. Harold Craig Becker,

AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL

ORGANIZATIONS, Washington, D.C., Peter J. Ford, UNITED FOOD & COMMERCIAL

WORKERS INTERNATIONAL UNION, Washington, D.C., Randy Rabinowitz, OSH LAW

PROJECT, LLC, Washington, D.C., Andrew D. Roth, BREDHOFF & KAISER, PLLC,

Washington, D.C., Nicole Berner, SERVICE EMPLOYEES INTERNATIONAL UNION,

Washington, D.C., Keith R. Bolek, O’DONOGHUE & O’DONOGHUE LLP, Washington, D.C.,

Victoria L. Bor, SHERMAN DUNN, P.C., Washington, D.C., for Petitioner Union of American

Physicians and Dentists. Cathleen A. Martin, John A. Ruth, NEWMAN, COMLEY & RUTH,

P.C., Jefferson City, Missouri, for MFA Incorporated Petitioners. Benjamin M. Flowers, May

Davis, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, Christopher L.

Thacker, Lindsey R. Keiser, OFFICE OF THE KENTUCKY ATTORNEY GENERAL,

Frankfort, Kentucky, Clark L. Hildabrand, Brandon J. Smith, OFFICE OF THE TENNESSEE

ATTORNEY GENERAL, Nashville, Tennessee, Brian Kane, Leslie M. Hayes, Megan A.

Larrondo, OFFICE OF THE IDAHO ATTORNEY GENERAL, Boise, Idaho, Jeffrey A.

Chanay, OFFICE OF THE KANSAS ATTORNEY GENERAL, Topeka, Kansas, Mithun

Mansinghani, OFFICE OF THE OKLAHOMA ATTORNEY GENERAL, Oklahoma City,

Oklahoma, Lindsay S. See, OFFICE OF THE WEST VIRGINIA ATTORNEY GENERAL,

Charleston, West Virginia, Edmund G. LaCour Jr., OFFICE OF THE ALABAMA ATTORNEY

GENERAL, Montgomery, Alabama, Charles E. Brasington, OFFICE OF THE ALASKA

ATTORNEY GENERAL, Anchorage, Alaska, Drew C. Ensign, OFFICE OF THE ARIZONA

ATTORNEY GENERAL, Phoenix, Arizona, D. John Sauer, OFFICE OF THE MISSOURI

ATTORNEY GENERAL, Jefferson City, Missouri, David M. S. Dewhirst, Christian B.

Corrigan, OFFICE OF THE MONTANA ATTORNEY GENERAL, Helena, Montana, Nicholas

J. Bronni, Vincent M. Wagner, OFFICE OF THE ARKANSAS ATTORNEY GENERAL, Little

App.002

Case: 21-7000

Nos. 21-7000, et al.

Document: 386-2

Filed: 12/17/2021

In re: MCP No. 165, Occupational Safety &

Health Admin. Rule on COVID-19 Vaccination

and Testing, 86 Fed. Reg. 61402

Page: 3

(23 of 77)

Page 3

Rock, Arkansas, Henry C. Whitaker, Jason H. Hilborn, OFFICE OF THE FLORIDA

ATTORNEY GENERAL, Tallahassee, Florida, James A. Campbell, OFFICE OF THE

NEBRASKA ATTORNEY GENERAL, Lincoln, Nebraska, Anthony J. Galdieri, OFFICE OF

THE NEW HAMPSHIRE ATTORNEY GENERAL, Concord, New Hampshire, Matthew A.

Sagsveen, OFFICE OF THE NORTH DAKOTA ATTORNEY GENERAL, Bismarck, North

Dakota, Ross W. Bergethon, OFFICE OF THE GEORGIA ATTORNEY GENERAL, Atlanta,

Georgia, Thomas M. Fisher, OFFICE OF THE INDIANA ATTORNEY GENERAL,

Indianapolis, Indiana, Thomas T. Hydrick, OFFICE OF THE SOUTH CAROLINA

ATTORNEY GENERAL, Columbia, South Carolina, Samuel P. Langholz, OFFICE OF THE

IOWA ATTORNEY GENERAL, Des Moines, Iowa, Elizabeth B. Murrill, OFFICE OF THE

LOUISIANA ATTORNEY GENERAL, Baton Rouge, Louisiana, Judd E. Stone II, William F.

Cole, Ryan S. Baasch, OFFICE OF THE TEXAS ATTORNEY GENERAL, Austin, Texas,

Melissa A. Holyoak, OFFICE OF THE UTAH ATTORNEY GENERAL, Salt Lake City, Utah,

John V. Coghlan, OFFICE OF THE MISSISSIPPI ATTORNEY GENERAL, Jackson,

Mississippi, Ryan Schelhaas, OFFICE OF THE WYOMING ATTORNEY GENERAL,

Cheyenne, Wyoming, for State Petitioners. Michael E. Toner, Thomas M. Johnson, Jr., Stephen

J. Obermeier, Jeremy J. Broggi, Krystal B. Swendsboe, WILEY REIN LLP, Washington, D.C.,

for Petitioner Republican National Committee. Daniel P. Lennington, WISCONSIN

INSTITUTE FOR LAW & LIBERTY, Milwaukee, Wisconsin, for Tankcraft Petitioners.

Matthew R. Miller, Robert Henneke, Chance Weldon, Nathan Curtisi, TEXAS PUBLIC

POLICY FOUNDATION, Austin, Texas, for Burnett Specialists Petitioners. John Stone

Campbell III, John P. Murrill, TAYLOR, PORTER, BROOKS, & PHILLIPS L.L.P., Baton

Rouge, Louisiana, for Cox Operating Petitioners. Jessica Hart Steinmann, Josh Campbell,

Rachel Jag, AMERICA FIRST POLICY INSTITUTE, Washington, D.C., Kris W. Kobach,

ALLIANCE FOR FREE CITIZENS, Lecompton, Kansas, for DTN Staffing Petitioners. Daniel

R. Suhr, M. E. Buck Dougherty III, LIBERTY JUSTICE CENTER, Chicago, Illinois, Sarah

Harbison, PELICAN INSTITUTE FOR PUBLIC POLICY, New Orleans, Louisiana, for BST

Holdings Petitioners. Kurtis T. Wilder, Joseph E. Richotte, Steven R. Eatherly, BUTZEL

LONG, P.C., Detroit, Michigan, for Petitioner Small Business Association of Michigan. Henry

M. Perlowski, Ashley S. Kelly, ARNALL GOLDEN GREGORY LLP, Atlanta, Georgia,

Richard J. Oparil, ARNALL GOLDEN GREGORY LLP, Washington, D.C., for Petitioner

Natural Products Association. Robert Alt, THE BUCKEYE INSTITUTE, Columbus, Ohio,

Patrick Strawbridge, CONSOVOY MCCARTHY PLLC, Boston, Massachusetts, for Petitioner

Phillips Manufacturing & Tower Company. David A. Cortman, John J. Bursch, Matthew S.

Bowman, Frank H. Chang, ALLIANCE DEFENDING FREEDOM, Washington, D.C., Ryan L.

Bangert, Ryan J. Tucker, ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona, for

Southern Baptist Theological Seminary Petitioners. Jordan A. Sekulow, Abigail A. Southerland,

Miles Terry, Christy Stierhoff, AMERICAN CENTER FOR LAW & JUSTICE, Washington,

D.C., Edward L. White III, AMERICAN CENTER FOR LAW & JUSTICE, Ann Arbor,

Michigan, for Petitioner Heritage Foundation. Steven P. Lehotsky, Scott A. Keller, Michael B.

Schon, LEHOTSKY KELLER LLP, Washington, D.C., for Business Association Petitioners.

Matthew J. Clark, ALABAMA CENTER FOR LAW AND LIBERTY, Birmingham, Alabama,

for FabArc Steel Supply Petitioners. J. Larry Stine, WIMBERLY, LAWSON, STECKEL,

App.003

Case: 21-7000

Nos. 21-7000, et al.

Document: 386-2

Filed: 12/17/2021

In re: MCP No. 165, Occupational Safety &

Health Admin. Rule on COVID-19 Vaccination

and Testing, 86 Fed. Reg. 61402

Page: 4

(24 of 77)

Page 4

SCHNEIDER & STINE, P.C., Atlanta, Georgia, for Associated Builders and Contractors

Petitioners. Jeffrey C. Mateer, Hiram S. Sasser III, David J. Hacker, Jeremiah G. Dys, Lea E.

Patterson, Keisha T. Russell, FIRST LIBERTY INSTITUTE, Plano, Texas, for Answers in

Genesis Petitioners. David A. Cortman, John J. Bursch, Matthew S. Bowman, Frank H. Chang,

ALLIANCE DEFENDING FREEDOM, Washington, D.C., Ryan L. Bangert, Ryan J. Tucker,

ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona, Harmeet K. Dhillon, Ronald D.

Coleman, Mark P. Meuser, Michael A. Columbo, DHILLON LAW GROUP INC., San

Francisco, California, for Petitioner Bentkey Services. Aaron Abadi, New York, New York, pro

se. ON AMICUS BRIEF: Brianne Gorod, CONSTITUTIONAL ACCOUNTABILITY

CENTER, Washington, D.C., Scott E. Rosenow WMC LITIGATION CENTER, Madison,

Wisconsin, Catherine L. Strauss, ICE MILLER LLP, Columbus, Ohio, Sheng Li, NEW CIVIL

LIBERTIES ALLIANCE, Washington, D.C., Emmy L. Levens, COHEN MILSTEIN SELLERS

& TOLL PLLC, Washington, D.C., Rachel L. Fried, Jessica Anne Morton, Jeffrey B. Dubner,

JoAnn Kintz, DEMOCRACY FORWARD FOUNDATION, Washington, D.C., Scott L. Nelson,

Allison M. Zieve, PUBLIC CITIZEN LITIGATION GROUP, Washington, D.C., Michael T.

Anderson, Adam C. Breihan, MURPHY ANDERSON PLLC, Washington, D.C., Deepak Gupta,

GUPTA WESSLER PLLC, Washington, D.C., for Amici Curiae.

STRANCH, J., delivered the opinion of the court in which GIBBONS, J., joined.

GIBBONS, J. (pg. 38), delivered a separate concurring opinion. LARSEN, J. (pp. 39–57),

delivered a separate dissenting opinion.

_________________

OPINION

_________________

JANE B. STRANCH, Circuit Judge. The COVID-19 pandemic has wreaked havoc

across America, leading to the loss of over 800,000 lives, shutting down workplaces and jobs

across the country, and threatening our economy. Throughout, American employees have been

trying to survive financially and hoping to find a way to return to their jobs. Despite access to

vaccines and better testing, however, the virus rages on, mutating into different variants, and

posing new risks. Recognizing that the “old normal” is not going to return, employers and

employees have sought new models for a workplace that will protect the safety and health of

employees who earn their living there. In need of guidance on how to protect their employees

from COVID-19 transmission while reopening business, employers turned to the Occupational

Safety and Health Administration (OSHA or the Agency), the federal agency tasked with

assuring a safe and healthful workplace. On November 5, 2021, OSHA issued an Emergency

App.004

Case: 21-7000

Nos. 21-7000, et al.

Document: 386-2

Filed: 12/17/2021

In re: MCP No. 165, Occupational Safety &

Health Admin. Rule on COVID-19 Vaccination

and Testing, 86 Fed. Reg. 61402

Page: 5

(25 of 77)

Page 5

Temporary Standard (ETS or the standard) to protect the health of employees by mitigating

spread of this historically unprecedented virus in the workplace.

The ETS requires that

employees be vaccinated or wear a protective face covering and take weekly tests but allows

employers to choose the policy implementing those requirements that is best suited to their

workplace. The next day, the U.S. Court of Appeals for the Fifth Circuit stayed the ETS pending

judicial review, and it renewed that decision in an opinion issued on November 12. Under

28 U.S.C. § 2112(a)(3), petitions challenging the ETS—filed in Circuits across the nation—were

consolidated into this court.

Pursuant to our authority under 28 U.S.C. § 2112(a)(4), we

DISSOLVE the stay issued by the Fifth Circuit for the following reasons.

I. BACKGROUND

A. OSHA’s History and Authority

Congress passed the Occupational Safety and Health Act of 1970 (OSH Act or the Act)

and established OSHA “to assure safe and healthful working conditions for the nation’s work

force and to preserve the nation’s human resources.”

Asbestos Info. Ass’n/N. Am. v.

Occupational Safety & Health Admin., 727 F.2d 415, 417 (5th Cir. 1984). It expressly found that

“personal injuries and illnesses arising out of work situations impose a substantial burden upon,

and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical

expenses, and disability compensation payments.” 29 U.S.C. § 651(a). OSHA is charged with

ensuring worker safety and health “by developing innovative methods, techniques, and

approaches for dealing with occupational safety and health problems.” Id. § 651(b)(5). To fulfill

that charge, Congress authorized the Secretary of Labor (the Secretary) “to set mandatory

occupational safety and health standards applicable to businesses affecting interstate commerce.”

Id. § 651(b)(3). And it vested the Secretary with “broad authority . . . to promulgate different

kinds of standards” for health and safety in the workplace. Indus. Union Dep’t, AFL-CIO v. Am.

Petroleum Inst., 448 U.S. 607, 611 (1980) (plurality opinion); see, e.g., N. Am.’s Bldg. Trades

Unions v. Occupational Safety & Health Admin., 878 F.3d 271, 281 (D.C. Cir. 2017); United

Steelworkers of Am., AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1202, 1311 (D.C. Cir. 1980);

29 C.F.R. §§ 1910.141, 1926.51.

App.005

Case: 21-7000

Nos. 21-7000, et al.

Document: 386-2

Filed: 12/17/2021

In re: MCP No. 165, Occupational Safety &

Health Admin. Rule on COVID-19 Vaccination

and Testing, 86 Fed. Reg. 61402

Page: 6

(26 of 77)

Page 6

An occupational safety and health standard is one that “requires conditions, or the

adoption or use of one or more practices, means, methods, operations, or processes, reasonably

necessary or appropriate to provide safe or healthful employment and places of employment.”

29 U.S.C. § 652(8). Before going into effect, OSHA’s standards must undergo a notice-andcomment period for 30 days, during which time anyone who objects to the standard may request

a public hearing. Id. § 655(b)(2)–(3). Within 60 days from the end of the notice-and-comment

period, the Secretary must either publish the standard or decline to issue the standard. Id.

§ 655(b)(4). The Secretary has set standards that affect workplaces across the country in a wide

range of categories, including sanitation, air contaminants, hazardous materials, personal

protective equipment, and fire protection. See National Consensus Standards and Established

Federal Standards, 36 Fed. Reg. 10,466 (May 29, 1971).

In emergency circumstances, OSHA “shall” promulgate an “emergency temporary

standard” that takes “immediate effect.” 29 U.S.C. § 655(c)(1). Emergency temporary standards

do not displace notice-and-comment requirements; rather, the ETS serves as the “proposed rule,”

and OSHA must proceed over the course of six months with the notice-and-comment procedures

of a normal OSHA standard. Id. § 655(c)(2), (3). At the end of that period, the Secretary must

promulgate either the same standard or a revised standard in light of the notice-and-comment

process. Id. § 655(c)(2). Before issuing an ETS, OSHA must determine: (1) “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 (2) that an “emergency standard is necessary to

protect employees from such danger.” Id. § 655(c)(1).

With respect to any OSHA standard—emergency or otherwise—employers may seek a

“variance” from the standard. Id. § 655(d). Under that provision, an employer must demonstrate

“that the conditions, practices, means, methods, operations, or processes used or proposed to be

used by an employer will provide employment and places of employment to his employees

which are as safe and healthful as those which would prevail if he complied with the standard.”

Id.

App.006

Case: 21-7000

Nos. 21-7000, et al.

Document: 386-2

Filed: 12/17/2021

Page: 7

In re: MCP No. 165, Occupational Safety &

Health Admin. Rule on COVID-19 Vaccination

and Testing, 86 Fed. Reg. 61402

(27 of 77)

Page 7

B. Factual Background

OSHA monitored the COVID-19 pandemic from the beginning. As early as April 2020,

OSHA sought to protect workers through “widespread voluntary compliance” with “safety

guidelines,” specifying that workplaces should comply with personal protective equipment

standards, see 29 C.F.R. § 1910, and by reinforcing employers’ “general duty” to furnish each

worker “employment and a place of employment, which are free from recognized hazards that

are causing or are likely to cause death or serious physical harm,” see 29 U.S.C. § 654(a)(1).

Given the pandemic’s trajectory—and the emergence of rapidly-spreading variants causing

“increases in infectiousness and transmission,” 86 Fed. Reg. at 61,409—OSHA found that its

“nonregulatory enforcement tools” were “inadequate” to ensure all working individuals “safe

and healthful working conditions.” 29 U.S.C. § 651(b); see 86 Fed. Reg. at 61,410–45.

Determining that the continued spread of COVID-19 met the two requirements of

§ 655(c)(1), on November 5, 2021, OSHA published an ETS to fulfill its statutory directive and

address the “extraordinary and exigent circumstances” presented by this unprecedented

pandemic. 86 Fed. Reg. at 61,434. OSHA published a 153-page preamble to the ETS to explain

the bases for its decision to issue the ETS under 29 U.S.C. § 655(c). 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).

The ETS does not require anyone to be vaccinated. Rather, the ETS allows covered

employers—employers with 100 or more employees—to determine for themselves how best to

minimize the risk of contracting COVID-19 in their workplaces.

Id. at 61,438 (allowing

employers to “opt out” of any vaccination policies). Employers have the option to require

unvaccinated workers to wear a mask on the job and test for COVID-19 weekly. Id. They can

also require those workers to do their jobs exclusively from home, and workers who work

exclusively outdoors are exempt. Id. at 61,419. The employer—not OSHA—can require that its

workers get vaccinated, something that countless employers across the country have already

done. Id. at 61,436 (“[T]his ETS offers employers a choice in how to comply . . . .”).

App.007

Case: 21-7000

Nos. 21-7000, et al.

Document: 386-2

Filed: 12/17/2021

In re: MCP No. 165, Occupational Safety &

Health Admin. Rule on COVID-19 Vaccination

and Testing, 86 Fed. Reg. 61402

Page: 8

(28 of 77)

Page 8

Employers must also confirm their employees’ vaccination status and keep records of that

status. Id. at 61,552. Consistent with other OSHA standard penalties, employers who fail to

follow the standard may be fined penalties up to $13,653 for each violation and up to $136,532

for each willful violation. 29 C.F.R. § 1903.15(d).

C. Procedural History

Shortly after OSHA issued the ETS, private employers, labor unions, state governments,

and individual citizens across the country filed suit in virtually every circuit court, challenging

OSHA’s authority to issue such an ETS and OSHA’s basis for the ETS. One day after the ETS

went into effect, the Fifth Circuit issued a stay barring OSHA from enforcing the ETS until the

completion of judicial review. BST Holdings, LLC v. Occupational Safety & Health Admin.,

No. 21-60845, 2021 WL 5166656 (5th Cir. Nov. 6, 2021) (per curiam). Less than a week later,

the Fifth Circuit issued a written opinion, reaffirming the initial stay after “having conducted . . .

[an] expedited review.” BST Holdings, LLC v. Occupational Safety & Health Admin., 17 F.4th

604 (5th Cir. 2021).

In reaching its decision to stay the ETS, the Fifth Circuit generally forecasted that the

ETS faced fatal statutory and constitutional issues, then concluded that the Petitioners had

demonstrated a strong likelihood of success on the merits. Id. at 611–18. On the other stay

factors, the Fifth Circuit found that individuals, states, and employers would be “substantially

burdened” due to the compliance costs, loss of constitutional freedom, and intrusion into States’

“constitutionally reserved police power.” Id. at 618. Without addressing any of OSHA’s factual

explanations or its supporting scientific evidence concerning harm, the Fifth Circuit summarily

concluded that “a stay will do OSHA no harm whatsoever” and “a stay is firmly in the public

interest.” Id. at 618–19 (emphasis in original).

Under 28 U.S.C. § 2112(a)(3), the Government notified the judicial panel on multidistrict

litigation of petitions across multiple circuits, invoking the lottery procedure to consolidate all

petitions in a single circuit. On November 16, the panel designated the U.S. Court of Appeals

for the Sixth Circuit to review the petitions. On November 23, the Government moved to

App.008

Case: 21-7000

Nos. 21-7000, et al.

Document: 386-2

Filed: 12/17/2021

Page: 9

In re: MCP No. 165, Occupational Safety &

Health Admin. Rule on COVID-19 Vaccination

and Testing, 86 Fed. Reg. 61402

(29 of 77)

Page 9

dissolve the stay issued by the Fifth Circuit pursuant to § 2112(a)(4), which provides that the

court of appeals chosen through the multi-circuit lottery may modify, revoke, or extend a stay

that a court of appeals issued before the lottery.

II. ANALYSIS

Relying primarily on the evidence and authority set out in its 153-page preamble, OSHA

moved to dissolve the Fifth Circuit’s stay. Under 28 U.S.C. § 2112(a)(4), we review de novo the

challenged aspects of the ETS to determine whether the Fifth Circuit’s stay should be modified,

revoked, or extended.

A. Standard for Stay

“A stay is an ‘intrusion into the ordinary processes of administration and judicial

review.’” Nken v. Holder, 556 U.S. 418, 427 (2009) (quoting Va. Petroleum Jobbers Ass’n. v.

Fed. Power Comm’n, 259 F.2d 921, 925 (D.C. Cir. 1958)). Therefore, it “is not a matter of right,

even if irreparable injury might otherwise result to the appellant.” Id. (quoting Virginian Ry. Co.

v. United States, 272 U.S. 658, 672 (1926)). “[T]he heavy burden for making out a case for such

extraordinary relief” rests on “the moving parties.” Winston-Salem/Forsyth Cnty. Bd. of Educ. v.

Scott, 404 U.S. 1221, 1231 (1971); see also Nken, 556 U.S. at 433–34.

To determine whether a stay pending judicial review is merited, we consider 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.

Nken, 556 U.S. at 426 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).

B. Likelihood of Success on the Merits

1. Scope of OSHA’s Statutory Authority

Petitioners’ arguments are primarily grounded in the Fifth Circuit’s blanket conclusion

that the ETS is beyond the scope of OSHA’s statutory authority. The ETS was issued under

App.009

Case: 21-7000

Nos. 21-7000, et al.

Document: 386-2

Filed: 12/17/2021

Page: 10

In re: MCP No. 165, Occupational Safety &

Health Admin. Rule on COVID-19 Vaccination

and Testing, 86 Fed. Reg. 61402

(30 of 77)

Page 10

§ 655(c)(1) of the Act, which requires OSHA to issue an emergency standard if necessary to

protect workers from a “grave danger” presented by “exposure to substances or agents

determined to be toxic or physically harmful or from new hazards.” 29 U.S.C. § 655(c)(1). In

assessing that authority, the Fifth Circuit focused solely on the words in § 655(c)(1): “substances

or agents,” “toxic or physically harmful,” and “grave danger,” opining that those words are to be

interpreted based on the words and phrases in the immediate vicinity of the statutory language at

issue. BST Holdings, 17 F.4th at 612–13. But the Supreme Court has instructed that words and

phrases must be viewed in the context of the entire statute. See Gade v. Nat’l Solid Wastes

Mgmt. Ass’n, 505 U.S. 88, 99 (1992) (instructing that, when evaluating a statute, a court “must

not be guided by a single sentence or member of a sentence, but look to the provisions of the

whole law”). We therefore take a holistic view of the language that Congress chose to include in

its statutory authorization to OSHA.

An “agent” is “a chemically, physically, or biologically active principle.”

Agent,

Merriam-Webster Collegiate Dictionary, https://unabridged.merriam-webster.com/collegiate/

agent. And a virus is defined, in part, as “any large group of submicroscopic infectious agents.”

Virus,

Merriam-Webster

collegiate/virus.

Collegiate

Dictionary,

https://unabridged.merriam-webster.com/

The statute requires OSHA to determine whether an agent is “toxic or

physically harmful or from new hazards,” 29 U.S.C. § 655(c)(1) (emphasis added), speaking in

the disjunctive, which specifies that words so connected “are to be given separate meanings,”

Loughrin v. United States, 573 U.S. 351, 357 (2014) (quoting United States v. Woods, 571 U.S.

31, 45–46 (2013)). To conflate two descriptors into one meaning would improperly render one

disjunctive phrase superfluous. See Bailey v. United States, 516 U.S. 137, 146 (1995); Reiter v.

Sonotone Corp., 442 U.S. 330, 338–39 (1979).

Under the statutory definition, any agent,

including a virus, that is either “toxic” (i.e., poisonous, toxicity) or “physically harmful” (i.e.,

causing bodily harm) falls within OSHA’s purview. An agent that causes bodily harm—a

virus—falls squarely within the scope of that definition.

Other provisions of the Act reinforce OSHA’s authority to regulate infectious diseases

and viruses. As explained above, Congress enacted the OSH Act under the Commerce Clause

App.010

Case: 21-7000

Nos. 21-7000, et al.

Document: 386-2

Filed: 12/17/2021

In re: MCP No. 165, Occupational Safety &

Health Admin. Rule on COVID-19 Vaccination

and Testing, 86 Fed. Reg. 61402

Page: 11

(31 of 77)

Page 11

because Congress found that “illnesses arising out of work situations impose a substantial burden

upon . . . interstate commerce.” 29 U.S.C § 651(a) (emphasis added). Congress created the

safety and health administration to protect workers from those illnesses by reducing “health

hazards at their places of employment.” Id. § 651(b)(1). The Act’s objectives include exploring

“ways to discover latent diseases, establishing causal connections between diseases and work in

environmental conditions, and conducting other research relating to health problems . . . .” Id.

§ 651(b)(6). And finally, the Act sought to “provid[e] medical criteria which will assure insofar

as practicable that no employee will suffer diminished health, functional capacity, or life

expectancy as a result of his work experience.” Id. § 651(b)(7).

Section 20 of the OSH Act provides for OSHA to work with and through other agencies

by expressly directing the Secretary of Health and Human Services to conduct research in

consultation with the Secretary of Labor to develop “information regarding potentially toxic

substances or harmful physical agents,” including through medical examination and tests. Id.

§ 669(a)(5). That provision also contains the religious exemption for the entire OSH Act:

“[n]othing in this or any other provision of this chapter shall be deemed to authorize or require

medical examination, immunization, or treatment, for those who object thereto on religious

grounds, except where such is necessary for the protection of the health or safety of others.” Id.

The provision’s reference to immunization and its creation of a limited exception to the Act’s

authorization of standards involving immunization would be rendered meaningless if the statute

did not contemplate both that “harmful agents” include infectious, disease-causing agents, such

as viruses, and that OSHA would employ the use of immunizations to combat those agents.

Congress confirmed OSHA’s infectious disease authority in other statutes. In 1989,

OSHA proposed a standard governing bloodborne pathogens to curb transmission rates of HIV,

hepatitis B (HBV), and hepatitis C. See Occupational Exposure to Bloodborne Pathogens,

54 Fed. Reg. 23,042 (proposed May 30, 1989). When the standard had not been finalized by

1991, Congress ordered OSHA to finalize its rulemaking by a date certain, “warning that if

[OSHA] did not meet its deadline, the proposed standard would become effective in the interim.”

Dale and Tracy, Occupational Safety and Health Law 64 (2018). In 1992, Congress passed the

App.011

Case: 21-7000

Nos. 21-7000, et al.

Document: 386-2

Filed: 12/17/2021

In re: MCP No. 165, Occupational Safety &

Health Admin. Rule on COVID-19 Vaccination

and Testing, 86 Fed. Reg. 61402

Page: 12

(32 of 77)

Page 12

Workers Family Protection Act, codified in 29 U.S.C. § 671a, the same U.S. Code chapter as the

OSH Act. The statute resulted from findings that “hazardous chemicals and substances” were

being transported home on workers and their clothing posing a “threat to the health and welfare

of workers and their families.” 29 U.S.C. § 671a(b)(1)(A)–(B). Section 671a requires the

National Institute for Occupational Safety and Health to work with OSHA to study “issues

related to the contamination of workers’ homes with hazardous chemicals and substances,

including infectious agents, transported from the workplaces of such workers.”

Id.

§ 671a(c)(1)(A) (emphasis added). OSHA is then specifically required to consider the need for

additional standards on the studied issues and to promulgate such standards “pursuant to . . . the

Occupational Safety and Health Act of 1970.” Id. § 671a(d)(2).

In 2000, Congress passed the Needlestick Safety and Prevention Act, directing OSHA to

strengthen its bloodborne pathogens standard and provide language for the regulatory text. Pub.

L. No. 106-430, 114 Stat. 1901 (2000). Although legal challenges were brought against the

standard, no party challenged OSHA’s authority to regulate bloodborne pathogens. See Am.

Dental Ass’n v. Martin, 984 F.2d 823, 826 (7th Cir. 1993). Removing any basis for doubt that

OSHA is authorized to regulate infectious diseases, Congress expressly included funding for

OSHA in the American Rescue Plan that is to be used “to carry out COVID-19 related worker

protection activities.” Pub. L. No. 117-2, § 2101, 135 Stat. 4, 30 (2021).

Based on the OSH Act’s language, structure, and Congressional approval, OSHA has

long asserted its authority to protect workers against infectious diseases. In 1991, it promulgated

a standard regarding exposure to bloodborne pathogens. Occupational Exposure to Bloodborne

Pathogens; Final Rule; 56 Fed. Reg. 64,004 (1991) (codified at 29 C.F.R. § 1910.1030). That

standard required employers to make the hepatitis B vaccine available to employees at risk of

exposure to HBV. 29 C.F.R. § 1910.1030(f). OSHA has also promulgated standards requiring

employers engaged in hazardous waste cleanup to protect against any “biological agent and other

disease-causing agent” that “upon exposure, ingestion, inhalation or assimilation into any

person,. . . will or may reasonably be anticipated to cause death [or] disease,” id.

§ 1910.120(a)(3); requiring use of respirators to prevent occupational diseases caused by

App.012

Case: 21-7000

Nos. 21-7000, et al.

Document: 386-2

Filed: 12/17/2021

In re: MCP No. 165, Occupational Safety &

Health Admin. Rule on COVID-19 Vaccination

and Testing, 86 Fed. Reg. 61402

Page: 13

(33 of 77)

Page 13

“harmful dusts, fogs, fumes, mists, gases, smokes, sprays, or vapors,” id. § 1910.134(a)(1); and

requiring employers to provide adequate toilet and handwashing facilities to protect workers

from pesticides and prevent the spread of harmful bacteria and disease, id. § 1910.141; see also

Field Sanitation, 52 Fed. Reg. 16,050, 16,087, 16,090–91 (May 1, 1987) (codified at 29 C.F.R.

§ 1928.110) (requiring construction employers to ban the use of common drinking cups to avoid

the risk of contracting diseases); 29 C.F.R. § 192.51(a)(4).

Given OSHA’s clear and exercised authority to regulate viruses, OSHA necessarily has

the authority to regulate infectious diseases that are not unique to the workplace. Indeed, no

virus—HIV, HBV, COVID-19—is unique to the workplace and affects only workers. And

courts have upheld OSHA’s authority to regulate hazards that co-exist in the workplace and in

society but are at heightened risk in the workplace. See, e.g., Forging Indus. Ass’n v. Sec’y of

Labor, 773 F.2d 1436, 1442–43 (4th Cir. 1985) (en banc) (rejecting the argument that “because

hearing loss may be sustained as a result of activities which take place outside the workplace . . .

OSHA acted beyond its statutory authority by regulating non-occupational conditions or

causes”); Am. Dental Ass’n, 984 F.2d at 826 (recognizing that the “infectious character of HIV

and HBV warrant[s] even on narrowly economic grounds more regulation than would be

necessary in the case of a noncommunicable disease”); see also 29 C.F.R. § 1910.1025 (OSHA

regulates workplace exposure to lead).

Longstanding precedent addressing the plain language of the Act, OSHA’s interpretations

of the statute, and examples of direct Congressional authorization following the enactment of the

OSH Act all show that OSHA’s authority includes protection against infectious diseases that

present a significant risk in the workplace, without regard to exposure to that same hazard in

some form outside the workplace.

The responsibility the Act imposes on OSHA to protect the safety and health of

employees, moreover, is hardly limited to “hard hats and safety goggles.” OSHA has wide

discretion to form and implement the best possible solution to ensure the health and safety of all

workers, and has historically exercised that discretion. See United Steelworkers of Am., 647 F.2d

at 1260. Having been charged by the Act with creating such health-based standards, it makes

App.013

Case: 21-7000

Nos. 21-7000, et al.

Document: 386-2

Filed: 12/17/2021

In re: MCP No. 165, Occupational Safety &

Health Admin. Rule on COVID-19 Vaccination

and Testing, 86 Fed. Reg. 61402

Page: 14

(34 of 77)

Page 14

sense that OSHA’s authority contemplates the use of medical exams and vaccinations as tools in

its arsenal. See id. at 1228–40 (concluding that OSHA has the authority to require medical

surveillance of lead levels). “To suggest otherwise would mean that Congress had to have

anticipated both the unprecedented COVID-19 pandemic and the unprecedented politicization of

the disease to regulate vaccination against it.” Florida v. Dep’t of Health & Hum. Servs., No.

21-14098-JJ, 2021 WL 5768796, at *12 (11th Cir. Dec. 6, 2021). No such prescience is required

to address the health and safety concerns of American workers as they seek to return to their

workplaces. The language of the OSH Act plainly authorizes OSHA to act on its charge “to

assure safe and healthful working conditions for the nation’s work force and to preserve the

nation’s human resources.” Asbestos Info. Ass’n, 727 F.2d at 417.

2. Major Questions Doctrine

Having established OSHA’s statutory authority, we pause to address Petitioners’ and the

Fifth Circuit’s arguments pertaining to the major questions doctrine.

The Fifth Circuit’s

complete discussion of the point is contained in a single paragraph:

[T]he 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.” The Mandate

derives its authority from an old statute employed in a novel manner, 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. There is no clear expression of

congressional intent in § 655(c) to convey OSHA such broad authority, and this

court will not infer one. Nor can the Article II executive breathe new power into

OSHA’s authority—no matter how thin patience wears.

BST Holdings, 17 F.4th at 617–18 (citations and footnote omitted) (quoting Util. Air Regul. Grp.

v. EPA, 573 U.S. 302, 324 (2014)).

The seldom-used major questions doctrine is a canon of statutory interpretation that has

been described as an exception to Chevron deference. See, e.g., King v. Burwell, 576 U.S. 473,

485–86 (2015).

If any agency’s regulatory action “bring[s] about an enormous and

transformative expansion in [the agency’s] regulatory authority,” then there must be “clear

App.014

Case: 21-7000

Nos. 21-7000, et al.

Document: 386-2

Filed: 12/17/2021

In re: MCP No. 165, Occupational Safety &

Health Admin. Rule on COVID-19 Vaccination

and Testing, 86 Fed. Reg. 61402

Page: 15

(35 of 77)

Page 15

congressional authorization.” Util. Air Regul. Grp., 573 U.S. at 324. “We expect Congress to

speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political

significance.’” Id. (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160

(2000)). The doctrine itself is hardly a model of clarity, and its precise contours—specifically,

what constitutes a question concerning deep economic and political significance—remain

undefined.

The major questions doctrine is inapplicable here, however, because OSHA’s issuance of

the ETS is not an enormous expansion of its regulatory authority.

OSHA has regulated

workplace health and safety on a national scale since 1970, including controlling the spread of

disease. See Am. Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 520 (1981). As cataloged at

length above, vaccination and medical examinations are both tools that OSHA historically

employed to contain illness in the workplace. The ETS is not a novel expansion of OSHA’s

power; it is an existing application of authority to a novel and dangerous worldwide pandemic.

The dissent assumes our conclusion rests on the length of time (since 1970) OSHA has

regulated workplaces and that we miss the point that the major questions doctrine is also about

the “scope or degree” of the power an agency wields. (Dissent Op. at 53) Our conclusion rests

on much more, including: An extensive catalog of OSHA’s regulatory authority, citing the text

of the Act and precedent, both replete with references that contemplate the authority OSHA uses

here; the actual components of OSHA’s work—such as its many years of regulating illness in the

workplace; and other statutes acknowledging OSHA’s authority, including one that expressly

allocates funding to OSHA for its intervention in the COVID-19 crisis. This listing shows that

OSHA was granted the authority that it exercised. The case cited by the dissent, FDA v. Brown

& Williamson Tobacco Corporation, is inapposite because there the FDA made the claim that its

authority to regulate “drugs” extended to cigarettes, but Congress had repeatedly declined to

grant the FDA that authority. See 529 U.S. at 125, 137–39.

Any doubt as to OSHA’s authority is assuaged by the language of the OSH Act. In

arguing that OSHA does not have this authority, Petitioners and the Fifth Circuit rely on the

Supreme Court’s and the Sixth Circuit’s recent cases invoking the major questions doctrine

App.015

Case: 21-7000

Nos. 21-7000, et al.

Document: 386-2

Filed: 12/17/2021

Page: 16

In re: MCP No. 165, Occupational Safety &

Health Admin. Rule on COVID-19 Vaccination

and Testing, 86 Fed. Reg. 61402

(36 of 77)

Page 16

regarding a nationwide moratorium on evictions in counties experiencing high levels of COVID19 transmission. See Ala. Ass’n of Realtors v. U.S. Dep’t of Health & Hum. Servs., 141 S. Ct.

2485 (2021); Tiger Lily, LLC v. U.S. Dep’t of Hous. & Urb. Dev., 5 F.4th 666 (6th Cir. 2021).

The Centers for Disease Control and Prevention (CDC) promulgated the moratorium under

§ 361(a) of the Public Health Service Act (PHSA), referencing its “broad authority to take

whatever measures it deems necessary to control the spread of COVID-19.” Ala. Ass’n of

Realtors, 141 S. Ct. at 2488. The Supreme Court determined that clear language in the PHSA

expressly limited the scope of the CDC’s authority to specific measures, which scope did not

include moratoria. Id. The Court noted that “[e]ven if the text were ambiguous, the sheer scope

of the CDC’s claimed authority under § 361(a) would counsel against the Government’s agency

interpretation.” Id. at 2489. Because 80 percent of the United States population fell within the

moratorium, which would cost nearly $50 billion, and the moratorium intruded into an area

traditionally left to the States, landlord-tenant law, the Court noted that if Congress wished the

CDC to have such authority, it needed to “enact exceedingly clear language” to that effect. Id.

(quoting U.S. Forest Serv. v. Cowpasture River Pres. Ass’n, 140 S. Ct. 1837, 1850 (2020)).

As an initial point, Alabama Association of Realtors and Tiger Lily do not control this

case. Those cases concerned a different agency, the CDC, and a different regulation, the

suspension of evictions. Any authority to issue such regulation came from a different statute:

the PHSA. The decisions primarily focused on interpreting the language of that underlying

statute. Ala Ass’n of Realtors, 141 S. Ct. at 2488; Tiger Lily, 5 F.4th at 669–71.

Those cases are inapposite because here the statutory language unambiguously grants

OSHA authority for the ETS. As discussed at length, the OSH Act confers authority on OSHA

to impose standards and regulations on employers to protect workplace health and safety,

including the transmission of viruses in the workplace.

See 29 U.S.C. §§ 651(b), 655(c).

OSHA’s ETS authority is circumscribed not only by the requirements of grave danger and

necessity, but also by the required relationship to the workplace. Id.; see United Steelworkers of

Am., 647 F.2d at 1230. And OSHA honored those parameters, issuing emergency standards only

eleven times, including the currently challenged ETS. See SCOTT D. SZYMENDRA, CONG. RSCH.

App.016

Case: 21-7000

Nos. 21-7000, et al.

Document: 386-2

Filed: 12/17/2021

In re: MCP No. 165, Occupational Safety &

Health Admin. Rule on COVID-19 Vaccination

and Testing, 86 Fed. Reg. 61402

Page: 17

(37 of 77)

Page 17

SERV., R46288, OCCUPATION SAFETY AND HEALTH ADMIN. (OSHA): COVID-19 EMERGENCY

TEMPORARY STANDARDS (ETS) ON HEALTH CARE EMP. AND VACCINATIONS AND TESTING FOR

LARGE EMPS. at 35–36 tbl. A-1 (2021), https://crsreports.congress.gov/product/pdf/R/R46288.

This is, therefore, different from the CDC’s authority under the PHSA, which provided a limited

scope of tools to effectuate the Act’s purposes, which scope did not include moratoria, and which

regulated an area not traditionally in the CDC’s wheelhouse.1 Finally, the same federalism

concerns are not at issue here: “[a]lthough . . . ‘public health issues’ . . . have ‘traditionally been

a primary concern of state and local officials,’ Congress, in adopting the OSH Act, decided that

the federal government would take the lead in regulating the field of occupational health.”

Farmworker Just. Fund v. Brock, 811 F.2d 613, 625 (D.C. Cir. 1987) (quoting Am. Textile Mfrs.

Inst., 452 U.S. at 509).

In sum, the major questions doctrine is inapplicable here. OSHA’s issuance of the ETS is

not a transformative expansion of its regulatory power as OSHA has regulated workplace health

and safety, including diseases, for decades.

3. OSHA’s Basis for the Emergency Temporary Standard

Having found no threshold issue that OSHA exceeded its authority under the statute, we

turn to the challenges to the ETS itself.

As noted, OSHA is permitted to issue an emergency temporary standard, which takes

“immediate effect” and serves as a “proposed rule” for a notice-and-comment rulemaking if it

determines: (1) “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 (2) that a

standard “is necessary to protect employees from such danger.” 29 U.S.C. § 655(c). Those

determinations are “conclusive if supported by substantial evidence in the record as a whole.”

1In comparing this case with Alabama Association, the Fifth Circuit wrote, “But health agencies do not

make housing policy, and occupational safety administrators do not make health policy.” BST Holdings, 17 F.4th at

619. The Fifth Circuit fails to acknowledge that OSHA stands for the Occupational Safety and Health

Administration. See 29 U.S.C. § 651(b) (“The Congress declares it to be its purpose and policy . . . to assure so far

as possible every working man and woman in the Nation safe and healthful working conditions . . . .” (emphasis

added)).

App.017

Case: 21-7000

Nos. 21-7000, et al.

Document: 386-2

Filed: 12/17/2021

Page: 18

In re: MCP No. 165, Occupational Safety &

Health Admin. Rule on COVID-19 Vaccination

and Testing, 86 Fed. Reg. 61402

(38 of 77)

Page 18

Id. § 655(f). On judicial review, we determine “whether the record contains ‘such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.’” Asbestos

Info. Ass’n, 727 F.2d at 421 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

While the ultimate question hinges on whether the record contains substantial evidence,

“the nature of the evidence in this case requires that we inquire into whether OSHA ‘carried out

[its] essentially legislative task in a manner reasonable under the state of the record before [it].’”

Id. at 421 (quoting Aqua Slide ‘n’ Dive Corp. v. Consumer Prod. Safety Comm’n, 569 F.2d 831,

838 (5th Cir. 1978)). To this end, deference is given to OSHA’s fact-finding expertise. Id.

(citing Aqua Slide ‘n’ Dive Corp., 569 F.2d at 838). While “we must take a ‘harder look’ at

OSHA’s action than we would if we were reviewing the action under the more deferential

arbitrary and capricious standard,” id. at 421, by the very nature of the administrative

proceeding, some flexibility is to be exercised in judicial review, id. at 422.

The court “can review [the] data in the record and determine whether it reflects

substantial support for the Secretary’s findings.” Indus. Union Dep’t, AFL-CIO v. Hodgson,

499 F.2d 467, 475 (D.C. Cir. 1974) (recognizing that substantial evidence standard of review in a

legislative-type proceeding is only applicable to some dimensions of the agency’s decision). But

some “determinations involve policy choices or factual determinations so much ‘on the frontiers

of scientific knowledge’ that they resemble policy determinations more than factual ones.”

Asbestos Info. Ass’n, 727 F.2d at 422 (quoting Hodgson, 499 F.2d at 474).

For these

determinations we respect “‘the boundaries between the legislative and the judicial function,’

[and] we ‘approach our reviewing task with a flexibility informed and shaped by sensitivity to

the diverse origins of the determinations that enter into a legislative judgment’ made by an

agency.” Id. (quoting Hodgson, 499 F.2d at 475). So too here.

In assessing the likelihood of success of the ETS challenges, we rely on the extensive

preamble to the ETS and the record before the courts.

App.018

Case: 21-7000

Nos. 21-7000, et al.

Document: 386-2

Filed: 12/17/2021

Page: 19

In re: MCP No. 165, Occupational Safety &

Health Admin. Rule on COVID-19 Vaccination

and Testing, 86 Fed. Reg. 61402

(39 of 77)

Page 19

i. Emergency

We begin with the contention endorsed by the Fifth Circuit that the standard

automatically fails because OSHA did not issue the ETS at the outset of the pandemic. The

claim that COVID-19 does not present “a true emergency” in the workplace has no foundation in

the record and law and ignores OSHA’s explanations.

OSHA addressed COVID-19 in

progressive steps tailored to the stage of the pandemic, including consideration of the growing

and changing virus, the nature of the industries and workplaces involved, and the availability of

effective tools to address the virus. This reasoned policy determination does not undermine the

state of emergency that this unprecedented pandemic currently presents.

Even if we assume that OSHA should have issued an ETS earlier, moreover, “to hold that

because OSHA did not act previously it cannot do so now only compounds the consequences of

the Agency’s failure to act.” Id. at 423. In Asbestos Information Association, the petitioners

challenged the Agency’s motives in promulgating an ETS “when the Agency has known for

years that asbestos constitutes a serious health risk, and, in fact, has had all the data it uses to

support its . . . action at hand, but nevertheless failed to act on it.” Id. The Fifth Circuit

concluded that the statutory language itself precludes a requirement that OSHA may only act on

“new information” because the Act permits regulation of harmful agents or “new hazards,”

proving that not all regulated dangers must be new. Id. “OSHA should, of course, offer some

explanation for its timing in promulgating an ETS,” id., and OSHA has done so here.

The record establishes that COVID-19 has continued to spread, mutate, kill, and block

the safe return of American workers to their jobs. To protect workers, OSHA can and must be

able to respond to dangers as they evolve. As OSHA concluded: with more employees returning

to the workplace, the “rapid rise to predominance of the Delta variant” meant “increases in

infectiousness and transmission” and “potentially more severe health effects.” 86 Fed. Reg. at

61,409–12. OSHA also explained that its traditional nonregulatory options had been proven

“inadequate.” Id. at 61,444. OSHA acted within its discretion in making the practical decision

to wait for Federal Drug Administration (FDA) approval of the vaccines before issuing the ETS;

“this fact demonstrates appropriate caution and thought on the part of the Secretary.”

App.019

Case: 21-7000

Nos. 21-7000, et al.

Document: 386-2

Filed: 12/17/2021

In re: MCP No. 165, Occupational Safety &

Health Admin. Rule on COVID-19 Vaccination

and Testing, 86 Fed. Reg. 61402

Page: 20

(40 of 77)

Page 20

Florida, 2021 WL 5768796, at *14 n.2. These findings, therefore, coupled with FDA-approved

vaccines, more widespread testing capabilities, the recognized Delta variant and the possibility of

new variants2 support OSHA’s conclusion that the current situation is an emergency, and one

that can be ameliorated by agency action.

ii. Grave Danger

Health effects may constitute a “grave danger” under the OSH Act if workers face “the

danger of incurable, permanent, or fatal consequences . . . , as opposed to easily curable and

fleeting effects on their health.”

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

489 F.2d 120, 132 (5th Cir. 1974). The “grave danger” required to warrant an ETS is a risk

greater than the “significant risk” that OSHA must show to promulgate a permanent standard

under § 655(b) of the Act. See Indus. Union Dep’t, 448 U.S. at 640 n.45. But the ultimate

determination of what precise level of risk constitutes a “grave danger” is a “policy consideration

that belongs, in the first instance, to the Agency.” Asbestos Info. Ass’n, 727 F.2d at 425

(accepting OSHA’s determination that 80 lives at risk over six months was a grave danger).

The Fifth Circuit’s conclusion, unadorned by precedent, that OSHA is “required to make

findings of exposure—or at least the presence of COVID-19—in all covered workplaces” is

simply wrong. BST Holdings, 17 F.4th at 613 (emphasis in original). If that were true, no

hazard could ever rise to the level of “grave danger” because a risk cannot exist equally in every

workplace and so the entire provision would be meaningless. Almost fifty years ago, the Third

Circuit quickly dismantled this argument:

Industry petitioners argue that there must also be substantial evidence to support

OSHA’s determination that employees are in fact being exposed to those harmful

substances. Although subsection 6(c)(1) readily lends itself to such a reading, that

interpretation would render ineffective the provision for emergency temporary

standards. The purpose of subsection 6(c)(1) is to provide immediate protection

in cases where there is a grave danger of harm to employees. This necessarily

requires rather sweeping regulation. OSHA cannot be expected to conduct

on-the-spot investigations of every user to determine if exposure is occurring.

2This possibility has borne out with the Omicron variant.

App.020

Case: 21-7000

Nos. 21-7000, et al.

Document: 386-2

Filed: 12/17/2021

In re: MCP No. 165, Occupational Safety &

Health Admin. Rule on COVID-19 Vaccination

and Testing, 86 Fed. Reg. 61402

Page: 21

(41 of 77)

Page 21

In cases where OSHA determines that a substance is sufficiently harmful that a

grave danger would be created by exposure, OSHA must be allowed to issue

necessary regulations. In other words exposure can be assumed to be occurring at

any place where there is a substance that has been determined to be sufficiently

harmful to pose a grave danger and where the regulations that have been

determined to be necessary to meet that danger are not in effect. This

interpretation of subsection 6(c)(1) is supported by the existence of subsection

6(d), which provides that any affected employer may obtain a variance from any

standard if he can show that “the conditions, practices, means, methods,

operations, or processes used or proposed to be used by an employer will provide

employment and places of employment to his employees which are as safe and

healthful as those which would prevail if he complied with the standard.”

Dry Color Mfrs. Ass’n v. Dep’t of Labor, 486 F.2d 98, 102 n.3 (3d Cir. 1973) (emphasis added).

Thus, OSHA is not required to investigate every business to show that COVID-19 is present in

each workplace nor is it required to prove that every worker will experience the same risk of

harm.3

On this point, OSHA has demonstrated the pervasive danger that COVID-19 poses to

workers—unvaccinated workers in particular—in their workplaces. First, OSHA explains why

the mechanics of COVID-19 transmission make our traditional workplaces ripe for the spread of

the disease, putting workers at heightened risk of contracting it. Transmission can occur “when

people are in close contact with one another in indoor spaces (within approximately six feet for

at least fifteen minutes)” or “in indoor spaces without adequate ventilation where small

respiratory particles are able to remain suspended in the air and accumulate.” 86 Fed. Reg. at

61,409. Transmissibility is possible from those who are symptomatic, asymptomatic, or presymptomatic, and variants are likely to be more transmissible. Id. American workplaces often

require employees to work in close proximity—whether in office cubicles or shoulder-toshoulder in a meatpacking plant—and employees generally “share common areas like hallways,

restrooms, lunchrooms[,] and meeting rooms.”

Id. at 61,411.

Evidence cited by OSHA

3Our dissenting colleague argues that OSHA fails to satisfy the “grave danger” in the workplace limitation

on its authority because it does not establish that “all covered employees have a high risk both of contracting

COVID-19 and suffering severe consequences.” (Dissent Op. at 49) But this section on “Grave Danger” explains

that OSHA is not required to show the presence of COVID-19 in every workplace industry by industry nor that

every employee will be harmed in the same serious way by it. Am. Dental Ass’n, 984 F.2d at 827 (holding that

OSHA is not required to proceed “workplace by workplace”).

App.021

Case: 21-7000

Nos. 21-7000, et al.

Document: 386-2

Filed: 12/17/2021

In re: MCP No. 165, Occupational Safety &

Health Admin. Rule on COVID-19 Vaccination

and Testing, 86 Fed. Reg. 61402

Page: 22

(42 of 77)

Page 22

corroborates its conclusion: scientific studies and findings prescribed by the CDC show that the

nature of the disease itself provides significant cause for concern in the workplace. Id. (citing

studies).

OSHA relied on public health data to support its observations that workplaces have a

heightened risk of exposure to the dangers of COVID-19 transmission. Many empirical, peerreviewed studies cited by OSHA have found that because of the characteristics of our workplace,

“most employees who work in the presence of other people (e.g., coworkers, customers, visitors)

need to be protected.”

86 Fed. Reg. at 61,412. Reports produced by state public health

organizations corroborate that finding. See, e.g., id. at 61,413 (North Carolina Department of

Health and Human Services reporting that “number of cases associated with workplace clusters

began increasing in several different types of work settings, including meat processing,

manufacturing, retail, restaurants, childcare, schools, and higher education.”); id. (Colorado

Department of Public Health & Environment reporting similar outbreaks across many types of

industries.); id. (Louisiana Department of Health, reporting that “[m]ore than three quarters of

outbreaks through [August 24, 2021] were associated with workplaces.”).4

Having established the risk to covered employees in the workplace, OSHA also set out

evidence of the severity of the harm from COVID-19. Apart from death, COVID-19 can lead to

“serious illness, including long-lasting effects on health,” (now named “long COVID”). Id. at

61,410. It has also “killed over 725,000 people in the United States in less than two years.” Id.

at 61,402. The number of deaths in America has now topped 800,000 and healthcare systems

across the nation have reached the breaking point. COVID-19 affects individuals of all age

groups; but on the whole “working age Americans (18-64 years old) now have a 1 in 14 chance

of hospitalization when infected with COVID-19.” Id. at 61,410. The “severity is also likely

exacerbated by long-standing healthcare inequities experienced by members of many racial and

4Our dissenting colleague argues that OSHA fails to satisfy the grave danger “in the workplace” limitation

on its authority because the Secretary did not specify how many employees would contract the virus at work and

instead “calculated the number of people who happen to work who would, in any event, contract COVID-19.”

(Dissent Op. at 51) As shown in this section, however, OSHA presented substantial evidence both that the

workplaces of virtually every industry across America present a heightened risk of COVID-19 exposure to

employees and that a clear predominance of COVID-19 outbreaks come from workplaces.

App.022

Case: 21-7000

Nos. 21-7000, et al.

Document: 386-2

Filed: 12/17/2021

Page: 23

In re: MCP No. 165, Occupational Safety &

Health Admin. Rule on COVID-19 Vaccination

and Testing, 86 Fed. Reg. 61402

economic demographics.”

Id.

(43 of 77)

Page 23

Compounding matters, mutations of the virus become

increasingly likely with every transmission, contributing to uncertainty and greater potential for

serious health effects. Id. at 61,409. Based on this record, the symptoms of exposure are

therefore neither “easily curable and fleeting” nor is the risk of developing serious disease

speculative. See Fla. Peach Growers, 489 F.2d at 132; Dry Color Mfrs. Ass’n, 489 F.2d at 106.

OSHA further estimated that the standard would “save over 6,500 worker lives and

prevent over 250,000 hospitalizations over the course of the next six months.” Id. at 61,408.

This well exceeds what the Fifth Circuit previously found to present a grave danger. See

Asbestos Info. Ass’n, 727 F.2d at 424 (assuming that 80 deaths over six months would constitute

a grave danger). As the death rate in America has continued to climb throughout 2021, those

estimates may prove to be understated.

Bill Chappell, 800,000 Americans Have Died of

COVID. Now

the

U.S.

Braces

for

Omicron-Fueled

Spike,

NPR

(Dec.

14,

2021), https://www.npr.org/sections/coronavirus-live-updates/2021/12/14/1063802370/americaus-covid-death-toll. And where grave danger exists in a workplace, of course OSHA may

consider the statistical proof on lives saved and hospitalizations prevented when issuing an ETS,

even if the risk to individual workers varies within workplaces.

A few Petitioners attack the veracity of some of the studies on which OSHA relies in its

ETS or point to other studies that they claim contradict the studies on which OSHA relied. But

the court’s “expertise does not lie in technical matters.” Pub. Citizen Health Rsch. Grp. v. Tyson,

796 F.2d 1479, 1495 (D.C. Cir. 1986). “[I]t is not infrequent that the available data do not settle

a regulatory issue, and the agency must then exercise its judgment in moving from facts and

probabilities on the record to a policy conclusion.” Id. (quoting Motor Vehicle Mfrs. Ass’n v.

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52 (1983)). OSHA pointed to extensive scientific

evidence, including studies conducted by the CDC, of the dangers posed by COVID-19. We

therefore cannot say that OSHA acted improperly in light of its clear reliance on “a body of

reputable scientific thought.” Indus. Union Dep’t., 448 U.S. at 656.

The claim that COVID-19 exists outside the workplace and thus is not a grave danger in

the workplace is equally unavailing. As discussed above, OSHA routinely regulates hazards that

App.023

Case: 21-7000

Nos. 21-7000, et al.

Document: 386-2

Filed: 12/17/2021

In re: MCP No. 165, Occupational Safety &

Health Admin. Rule on COVID-19 Vaccination

and Testing, 86 Fed. Reg. 61402

Page: 24

(44 of 77)

Page 24

exist both inside and outside the workplace. More to the point, OSHA here demonstrated with

substantial evidence that the nature of the workplace—commonplace across the country and in

virtually every industry—presents a heightened risk of exposure. Union Petitioners illustrate this

point as well. Within one week in mid-November, Michigan had reported 162 COVID-19

outbreaks, 157 of which were in workplaces;5 Tennessee reported 280 COVID-19 outbreaks,

161 of which were in workplaces;6 Washington state reported 65 outbreaks, of which 58 were in

workplaces.7 And other states similarly experienced outbreaks predominantly in the workplace.8

COVID-19 is clearly a danger that exists in the workplace.

Some Petitioners contend that COVID-19 is no longer a grave danger and claim that

OSHA’s delay in promulgating the ETS is evidence that no grave danger exists. As explained,

however, OSHA provided its reasoning for the delay. When the pandemic began, “scientific

evidence about the disease” and “ways to mitigate it were undeveloped.” 86 Fed. Reg. at 61,429.

At that point, OSHA chose to focus on nonregulatory options, and crafted workplace guidance

“based on the conditions and information available to the agency at that time,” including that

“vaccines were not yet available.” Id. at 61,429–30. The voluntary guidance, however, proved

inadequate, and as employees returned to workplaces the “rapid rise to predominance of the

Delta variant” meant “increases in infectiousness and transmission” and “potentially more severe

health effects.” Id. at 61,409–12.

At the same time, the options available to combat COVID-19 changed significantly: the

FDA granted approval to one vaccine on August 23, 2021, and testing became more readily

available. Id. at 61,431, 61,452. These changes, coupled with the ongoing risk workers face of

5Mich.

Dep’t of Health & Human Servs., https://www.michigan.gov/coronavirus/0,9753,7-40698163_98173_ 102057---,00.html.

6TN

Dep’t

Health,

coronavirus/Critical IndicatorReport.pdf

https://www.tn.gov/content/dam/tn/health/documents/cedep/novel-

7Wash.

Dep’t

Health,

https://www.doh.wa.gov/Portals/1/Documents/1600/coronavirus/datatables/Statewide COVID-19 OutbreakReport.pdf.

8Union Petitioners point to California, New Mexico, and Oregon as other states that illustrate significant

outbreaks in a variety of workplaces.

App.024

Case: 21-7000

Nos. 21-7000, et al.

Document: 386-2

Filed: 12/17/2021

In re: MCP No. 165, Occupational Safety &

Health Admin. Rule on COVID-19 Vaccination

and Testing, 86 Fed. Reg. 61402

Page: 25

(45 of 77)

Page 25

contracting COVID-19, support OSHA’s conclusion that the time was ripe for OSHA to address

the ongoing danger in the workplace through an ETS. More importantly, we are not to second

guess what the Agency considers a “risk worthy of Agency action” because that “is a policy

consideration that belongs, in the first instance to the Agency.” Asbestos Info. Ass’n, 727 F.2d at

425. Relying on the history of the pandemic, OSHA explained that “the agency cannot assume

based on past experience that nationwide case levels will not increase again.” 96 Fed. Reg. at

61,431.

That conclusion has proven correct, as we now see the rise of new and more

transmissible variants and the resulting increases in COVID-19 cases. See Centers for Disease

Control and Prevention (CDC), Omicron Variant: What You Need to Know (Dec. 13, 2021),

https://www.cdc.gov/coronavirus/2019-ncov/variants/omicron-variant.html. And we know that

in our nation, over 800,000 people have died in less than two years and the numbers continue to

climb, with more of those deaths having occurred in 2021 than in 2020. See Bill Chappell,

supra.

Based on the wealth of information in the 153-page preamble, it is difficult to imagine

what more OSHA could do or rely on to justify its finding that workers face a grave danger in

the workplace. It is not appropriate to second-guess that agency determination considering the

substantial evidence, including many peer-reviewed scientific studies, on which it relied. Indeed,

OSHA need not demonstrate scientific certainty. As long as it supports it conclusion with

“a body of reputable scientific thought,” OSHA may “use conservative assumptions in

interpreting the data . . . , risking error on the side of overprotection rather than underprotection.”

Indus. Union Dep’t, 448 U.S. at 656.

iii. Necessity

To issue an ETS, OSHA is also required to show that the ETS is “necessary to protect

employees from” the grave danger. 29 U.S.C. § 655(c)(1). This standard is more demanding

than the “reasonably necessary or appropriate” standard applicable to permanent standards. See

id. § 652(8); see also Indus. Union Dep’t, 448 U.S. at 615. To pass muster, OSHA must

demonstrate, by substantial evidence, that the regulation is essential to reducing the grave danger

asserted. See Dry Color, 486 F.2d at 105. In addition, OSHA must address economic feasibility

App.025

Case: 21-7000

Nos. 21-7000, et al.

Document: 386-2

Filed: 12/17/2021

Page: 26

In re: MCP No. 165, Occupational Safety &

Health Admin. Rule on COVID-19 Vaccination

and Testing, 86 Fed. Reg. 61402

(46 of 77)

Page 26

because the ETS’s “protection afforded to workers should outweigh the economic consequences

to the regulated industry.” Asbestos Info. Ass’n, 727 F.2d at 423.

Some Petitioners argue the word “necessity” mandates that OSHA’s standard may use

only the means that are absolutely required to quell the grave danger. Taken seriously, such a

cramped reading of the statute would require OSHA to prognosticate an emergency and devise

the most narrowly tailored ETS to entirely remove the grave danger from the workplace. But in

virtually every emergency situation that would require an ETS, no precaution proposed by

OSHA could ever be 100 percent effective at quelling the emergency.

Courts have

acknowledged this practical reality, explaining that ETS standards “may necessarily be

somewhat general . . . . It cannot be expected that every procedure or practice will be strictly

necessary as to every substance, type of use, or plant operation.” Dry Color Mfrs. Ass’n, Inc.,

486 F.2d at 105. OSHA need only demonstrate that the solution it proposes “is necessary to

alleviate a grave risk of worker deaths during [the ETS’s] six month term.” Asbestos Info. Ass’n,

727 F.2d at 427 (emphasis added).

The dissent disagrees, contending that the Secretary must rule out alternatives to show

why his proposed means are “indispensable,” pointing us to Asbestos Information Association.

(Dissent Op. at 44) But in that case, the Fifth Circuit found that OSHA’s determination of

necessity for the proposed ETS was undercut by its existing regulation through which “much of

the claimed benefit could be obtained.” 727 F.2d at 427. The Fifth Circuit did not require that

OSHA rule out every plausible alternative in devising its ETS because the critical question was

whether OSHA’s current regulations were sufficient to address the problem. See id. To answer

that question, the Secretary here cataloged OSHA’s actions involving COVID-19, starting with

advisory guidance then moving to attempts to enforce its General Duty clause. 86 Fed. Reg. at

61,444. These actions were to no avail as COVID-19 transmission rates in the workplace

continued to climb and COVID-19-related complaints continued to pour in, suggesting “a lack of

widespread compliance.”

Id. at 61,445.

With nothing left at his disposal to curb the

transmission in the workplace, the Secretary issued the ETS. We find that this explanation

satisfies the Secretary’s obligation.

App.026

Case: 21-7000

Nos. 21-7000, et al.

Document: 386-2

Filed: 12/17/2021

In re: MCP No. 165, Occupational Safety &

Health Admin. Rule on COVID-19 Vaccination

and Testing, 86 Fed. Reg. 61402

Page: 27

(47 of 77)

Page 27

Turning to assess the remaining evidence supporting OSHA’s necessity finding, OSHA

explained that the pandemic in the United States has significantly changed course since the

emergence of COVID-19 in early 2020, necessitating an ETS at this point in time. In particular,

the emergence of the Delta variant significantly increased transmission when reported cases had

been dwindling for months. The realities of the Delta variant significantly changed public health

policy and underscored a need for issuing an ETS—not only to control the variant itself, but to

control the spread of the disease to slow further mutations.

86 Fed. Reg. at 61,431–32.

Recognizing this new reality, the Agency crafted an ETS with options for employers, noting that

“employers in their unique workplace settings may be best situated to understand their workforce

and strategies that will maximize worker protection while minimizing workplace disruptions.”

Id. at 61,436.

Regarding the vaccine component of the ETS, OSHA explained the importance of

vaccination to combat the transmission of COVID-19 and relied upon studies demonstrating the

“power of vaccines to safely protect individuals,” including from the Delta variant. Id. at 61,432,

61,450. Extensive evidence cited by OSHA shows that vaccination “reduce[s] the presence and

severity of COVID-19 cases in the workplace,” and effectively “ensur[es]” that workers are

protected from being infected and infecting others. Id. at 61,434, 61,520, 61,528–29 (citing

studies). Likewise, the face-covering-and-test facet of the ETS is similarly designed based on

the scientific evidence to reduce the risk of transmission and infection of COVID-19. Regular

testing “is essential because SARS-CoV-2 infection is often attributable to asymptomatic or

pre-symptomatic transmission.” Id. at 61,438 (citing studies). And wearing a face covering

provides an additional layer of protection, designed to reduce “exposure to the respiratory

droplets of co-workers and others[, and] . . . to significantly reduce the wearer’s ability to spread

the virus.” Id. at 61,439.

Vaccinated employees are significantly less likely to bring (or if infected, spread) the

virus into the workplace. Id. 61,418–19. And testing in

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.