Amicus Curiae Brief — Ohio, et al., Applicants v. Department of Labor, Occupational Safety and Health Administration, et al.

Nos. 21A243, 21A244, 21A245, 21A246,

21A247, 21A248, 21A249, 21A250

In The

Supreme Court of the United States

________________

JOB CREATORS NETWORK ET AL.,

Applicants,

v.

DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY

AND HEALTH ADMINISTRATION ET AL.,

Respondents.

[additional captions on inside cover]

________________

On Emergency Applications For Stay of Agency Standard

Pending The Disposition By the United States Court of Appeals

for the Sixth Circuit of a Petition For Review and any Further

Proceedings in This Court or, Alternatively, Petition For A Writ

Of Certiorari Before Judgment And Stay Pending Resolution

________________

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF AND

BRIEF OF WASHINGTON LEGAL FOUNDATION AS AMICUS

CURIAE SUPPORTING APPLICANTS, A STAY OF AGENCY

STANDARD, AND CERTIORARI BEFORE JUDGMENT

________________

DECEMBER 2021

John M. Masslon II

Counsel of Record

Cory L. Andrews

WASHINGTON LEGAL FOUNDATION

2009 Massachusetts Ave. NW

Washington, DC 20036

(202) 588-0302

jmasslon@wlf.org

NATIONAL FEDERATION OF INDEPENDENT BUSINESS ET AL.,

Applicants,

V.

DEPARTMENT OF LABOR OCCUPATIONAL SAFETY

AND HEALTH ADMINISTRATION ET AL.,

Respondents.

________________

PHILLIPS MANUFACTURING & TOWER COMPANY ET AL.,

Applicants,

V.

DEPARTMENT OF LABOR OCCUPATIONAL SAFETY

AND HEALTH ADMINISTRATION ET AL.,

Respondents.

________________

THE SOUTHERN BAPTIST THEOLOGICAL SEMINARY ET AL.,

Applicants,

V.

DEPARTMENT OF LABOR OCCUPATIONAL SAFETY

AND HEALTH ADMINISTRATION ET AL.,

Respondents.

________________

STATE OF OHIO ET AL.,

Applicants,

V.

DEPARTMENT OF LABOR OCCUPATIONAL SAFETY

AND HEALTH ADMINISTRATION ET AL.,

Respondents.

________________

BST HOLDINGS, LLC ET AL.,

Applicants,

V.

DEPARTMENT OF LABOR OCCUPATIONAL SAFETY

AND HEALTH ADMINISTRATION ET AL.,

Respondents.

________________

HERITAGE FOUNDATION,

Applicant,

V.

DEPARTMENT OF LABOR OCCUPATIONAL SAFETY

AND HEALTH ADMINISTRATION ET AL.,

Respondents.

________________

WORD OF GOD FELLOWSHIP, INC. D/B/A

DAYSTAR TELEVISION NETWORK ET AL.

Applicants,

V.

DEPARTMENT OF LABOR OCCUPATIONAL SAFETY

AND HEALTH ADMINISTRATION ET AL.,

Respondents.

i

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF

Washington Legal Foundation moves for leave to file

the attached brief as amicus curiae supporting the

applications to reinstate the stay of the Occupational

Safety and Health Administration’s illegal emergency

temporary standard without ten days’ notice to the parties

of its intent to file as normally required by this Court’s

Rule 37.2(a). Given the anticipated expedited briefing

schedule, it was not feasible to give the parties ten days’

notice of the filing of this brief.

Washington Legal Foundation is a nonprofit, publicinterest law firm and policy center with supporters

nationwide. WLF promotes free enterprise, individual

rights, limited government, and the rule of law. It often

appears as amicus opposing the accumulation of power in

any one governmental branch, which violates the

Constitution’s careful separation of powers. See, e.g., Lucia

v. SEC, 138 S. Ct. 2044 (2018); Free Enter. Fund v. Pub. Co.

Acct. Oversight Bd., 561 U.S. 477 (2010).

The attached amicus brief includes arguments and

citations to authorities that are not included in the

pending applications for stay. It focuses on why OSHA’s

ETS will harm our economy by causing more supply-chain

disruptions. It also explains why OSHA’s failure to act for

over twenty-one months shows that the emergency

temporary standard process was not the proper way to

enact this policy proposal. Finally, the brief explains why

certiorari before judgment is appropriate here.

National Federation of Independent Business et al.,

State of Ohio et al., The Southern Baptist Theological

Seminary et al., Phillips Manufacturing & Tower Company

et al., and BST Holdings, LLC et al. consent to granting the

motion. Respondents and the other Applicants did not

respond to an email seeking their position on the motion

before it was printed.

ii

WLF thus moves for leave to file the attached amicus

brief.

Respectfully submitted,

John M. Masslon II

Counsel of Record

Cory L. Andrews

WASHINGTON LEGAL FOUNDATION

2009 Massachusetts Ave. NW

Washington, DC 20036

(202) 588-0302

jmasslon@wlf.org

DECEMBER 2021

iii

QUESTIONS PRESENTED

1. Whether the Court should stay the emergency

temporary standard that the Occupational Safety and

Health Administration issued, which exceeded its

statutory authority and violates the United States

Constitution.

2. Whether the Court should grant certiorari before

judgment so that it can review the ETS before the cases

become moot.

iv

TABLE OF CONTENTS

Page

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF ........ i

QUESTIONS PRESENTED ..............................................................iii

TABLE OF AUTHORITIES ............................................................... v

INTEREST OF AMICUS CURIAE .................................................... 1

INTRODUCTION & SUMMARY OF ARGUMENT ..................... 1

ARGUMENT ......................................................................................... 3

I.

THE COURT SHOULD STAY THE ETS PENDING FINAL

DISPOSITION OF APPLICANTS’ CHALLENGES .............................. 3

A. The ETS Will Hurt The Economy ........................ 4

B. OSHA’s Delay In Issuing The ETS Shows

The Mandate Should Have Undergone

Notice-And-Comment Rulemaking .................... 8

II. THE COURT SHOULD GRANT CERTIORARI BEFORE

JUDGMENT ....................................................................................... 12

CONCLUSION ................................................................................... 14

v

TABLE OF AUTHORITIES

Cases

Page(s)

Air Transp. Ass’n of Am. v. DOT,

900 F.2d 369 (D.C. Cir. 1990) ............................................. 10

Browning-Ferris Indus. of Cal., Inc. v. NLRB,

911 F.3d 1195 (D.C. Cir. 2018) ............................................. 1

BST Holdings, L.L.C. v. OSHA,

17 F.4th 604 (5th Cir. 2021) ............................................... 10

Dry Color Mfrs. Ass’n, Inc. v. DOL,

486 F.2d 98 (3d Cir. 1973) .................................................. 10

Env’tl Def. Fund v. EPA,

716 F.2d 915 (D.C. Cir. 1983) ............................................. 10

Fla. Peach Growers Ass’n, Inc.

v. U.S. Dep’t of Lab.,

489 F.2d 120 (5th Cir. 1974) .............................................. 10

In re AFL-CIO,

2020 WL 3125324

(D.C. Cir. June 11, 2020) .......................................................... 9

In re Velox Express, Inc.,

2019 WL 7584332

(N.L.R.B. Sept. 30, 2019) ......................................................... 1

Nat’l Ass’n of Farmworkers Orgs. v. Marshall,

628 F.2d 604 (D.C. Cir. 1980) ...................................... 10, 11

Parker Drilling Mgmt. Servs., Ltd. v. Newton,

139 S. Ct. 1881 (2019) ............................................................. 1

United States v. Texas,

142 S. Ct. 14 (2021) ............................................................... 12

United States v. Texas,

2021 WL 5855550 (U.S. Dec. 10, 2021) ......................... 12

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Whole Woman’s Health v. Jackson,

2021 WL 4928617 (U.S. Oct. 22, 2021) .......................... 12

Whole Woman’s Health v. Jackson,

2021 WL 5855551 (U.S. Dec. 10, 2021) ......................... 12

Wisconsin Cent. Ltd. v. United States,

138 S. Ct. 2067 (2018) .......................................................... 10

Statutes

5 U.S.C. § 533(b)(B) ....................................................................... 10

29 U.S.C. § 652(8).............................................................................. 9

29 U.S.C § 655(c)(1) ............................................................. 8, 9, 10

29 U.S.C. § 655(c)(3) ..................................................................... 12

Regulation

Exec. Order No. 14,017, 86 Fed. Reg. 11,849

(Mar. 1, 2021) ............................................................................. 4

Other Authorities

Ashley Bowerman, Labor shortages, supply

chain issues affecting retailers, WSFA-12

News (Dec. 13, 2021) ............................................................... 6

Chaim Gartenberg, Heated seats for 2022

Chevy trucks are the latest victim of the

chip shortage, The Verge

(Nov. 17, 2021) ...................................................................... 1, 5

Cong. Research Serv., Occupational Safety

and Health Administration (OSHA):

Emergency Temporary Standards (ETS)

and COVID-19, R46288 (Sept. 13, 2021) ........................ 11

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Elizabeth Chuck, Growing number of

companies suspend vaccine mandates,

including hospitals and Amtrak, NBC

News (Dec. 16, 2021) ............................................................... 6

Forum News Service, Sticker shock: Supplychain issues holding up Minnesota DVS

tab renewals (Dec. 17, 2021) ............................................ 4, 5

Katelyn Carralle, Biden will invest $30

million in the trucking industry to hire

more drivers after the crippling supply

chain crisis and backlash over the

vaccine mandates, Daily Mail

(Dec. 16, 2021) ........................................................................... 7

Martin Farrer, Global supply chain crisis

could last another two years, warn

experts, The Guardian (Dec. 18, 2021) ......................... 4, 5

Megan Leonhardt, 55% of people blame the

government for the supply chain crunch.

But what's actually behind the

slowdown?, Fortune (Dec. 16, 2021)................................... 6

Michael Willems, Covid silver lining:

'Extremely mild' Omicron variant is

rapidly killing off much more deadly

Delta coronavirus mutation, City A.M.

(Dec. 6, 2021) .............................................................................. 9

Molly Osberg, Black Friday's Supply Chain

Problems Are Really Labor Problems,

The New Republic (Nov. 25, 2021) ..................................... 5

viii

TABLE OF AUTHORITIES

(continued)

Page(s)

Robbie Whelan & Melanie Evans, Some

Hospitals Drop Covid-19 Vaccine

Mandates to Ease Labor Shortages, Wall

Street Journal (Dec. 13, 2021) .............................................. 6

S. Rep. No. 91-1282 (1970) ........................................................ 10

Sergei Klebnikov, Rivian Shares Fall To

Record Low As Company Warns Of

Supply Chain Issues, Forbes

(Dec. 17, 2021) ........................................................................... 5

Steve Scherer & David Shepardson,

Canadian, U.S. truckers warn vaccine

mandates will disrupt supply chains,

Reuters (Dec. 3, 2021) ............................................................. 7

Thomas Black, Supply-chain hell ignites

economic boom along U.S.-Mexico

border, Pittsburgh Post-Gazette

(Dec. 18, 2021) ........................................................................... 4

Tonya Garcia, Is Fido finicky? Pet food gets

hit by supply-chain disruptions,

MarketWatch (Dec. 18, 2021) ............................................... 4

U.S. Bureau of Labor, Consumer Price Index

(Dec. 10, 2021) ........................................................................... 2

INTEREST OF AMICUS CURIAE*

Washington Legal Foundation is a nonprofit, publicinterest law firm and policy center with supporters

nationwide. WLF promotes free enterprise, individual

rights, limited government, and the rule of law. To that

end, WLF often appears before federal tribunals

supporting economy-boosting employment rules and

opposing economy-destroying rules. See, e.g., Parker

Drilling Mgmt. Servs., Ltd. v. Newton, 139 S. Ct. 1881

(2019); In re Velox Express, Inc., 2019 WL 7584332

(N.L.R.B. Sept. 30, 2019); Browning-Ferris Indus. of Cal.,

Inc. v. NLRB, 911 F.3d 1195 (D.C. Cir. 2018).

INTRODUCTION & SUMMARY OF ARGUMENT

Anyone who has tried to buy a car recently knows how

difficult it is to find both new and used cars in stock. The

dealerships lucky enough to have inventory to sell are

asking over $10,000 above the manufacturer’s suggested

retail price. And unlike normal times, the dealerships are

not negotiating with consumers. Even one who pays this

markup and grabs a coveted new car will not receive the

same features that have become standard on most

vehicles. For example, General Motors has stopped

offering heated seats and steering wheels on its new

trucks and sport utility vehicles. See Chaim Gartenberg,

Heated seats for 2022 Chevy trucks are the latest victim of

the chip shortage, The Verge (Nov. 17, 2021),

https://bit.ly/3yFU2uk.

Similar shortages are evident at the grocery store.

Many shelves normally full of goods are now barren or

have scarce goods. The food and other items on the shelf

* No party’s counsel authored any part of this brief. No person or

entity, other than amicus and its counsel, paid for the brief’s

preparation or submission.

2

cost far more than they did just a few months ago. Last

month, the Consumer Price Index rose by an annual rate

of 9.6%. See U.S. Bureau of Labor, Consumer Price Index

(Dec. 10, 2021), https://www.bls.gov/cpi/. These

increased prices are hurting consumers during a time—

the Christmas season—when they can least afford it.

What is causing these supply-chain issues and raising

prices? Vaccine mandates. When governments or

companies require employees to get vaccinated, many

employees quit or are fired. Those positions often remain

unfilled because many job seekers either refuse to join

companies that require vaccines or move to jurisdictions

without vaccine mandates.

It makes no sense for the federal government to

exacerbate this problem by instituting a nationwide

vaccine mandate for most businesses critical to our

national economy. Rather than help alleviate the supplychain issues, it will only cause further problems. If the

Sixth Circuit’s mistaken decision is left to stand, the result

will be greater supply-chain shortages. This will have a

devastating effect on our economy, right when it is starting

to recover from the corrosive restrictions that many

governments imposed at the start of the COVID-19

pandemic.

What is even more troubling is that all of this is being

done by the Occupational Safety and Health

Administration using an emergency temporary standard.

The Occupational Safety and Health Act does not give

OSHA the power to regulate non-workplace safety issues

like employees’ personal or religious decisions to forgo

receiving a vaccine. Even if the OSH Act permitted the

agency to issue such an order, it must be done through

normal notice-and-comment rulemaking—not an

emergency temporary standard. That process is reserved

for new issues that require immediate action, not

something that arose over twenty-one months ago.

3

Allowing OSHA to exceed its legislative grant of authority

gives the Executive Branch far too much power and

violates core separation-of-powers principles.

Half of the Sixth Circuit’s active judges believe that the

ETS should be stayed. So too for a majority of the Fifth

Circuit panel that originally considered whether to stay

the ETS. Yet because of the vagaries of the Sixth Circuit’s

panel assignment, two judges decided to ignore the

reasoned legal judgment of most of the circuit judges who

have considered the issue and lifted the Fifth Circuit’s stay

of the ETS. The Court’s urgent intervention is necessary to

reinstate the stay and keep our country’s economy from

spiraling into a recession while protecting the conscience

rights of millions of American citizens.

Earlier this year, the Court granted certiorari before

judgment in two cases based only on public pressure.

There, the Court ended up keeping in place most of the

Fifth Circuit’s decision. Here, the Court’s quick disposition

of the issue is even more justified. Left to stand, the Sixth

Circuit’s decision would seriously undermine our

tripartite form of government while wrecking the

economy. If the case proceeds normally, the ETS will

expire before the Court has a chance to weigh in on this

critical issue. Thus, the Court should also grant certiorari

before judgment.

ARGUMENT

I.

THE COURT SHOULD STAY THE ETS PENDING FINAL

DISPOSITION OF APPLICANTS’ CHALLENGES.

The Court should immediately stay the ETS pending

final disposition of the case in the Sixth Circuit and this

Court. Any other action would lead to economic

devastation, the loss of freedom of conscience in the

United States, and a rebuke of the Constitution’s core

separation-of-powers principles.

4

A.

The ETS Will Hurt The Economy.

The Court should immediately stay the ETS pending

final disposition of the case in the Sixth Circuit and this

Court. Otherwise, our already fragile economy will suffer

more. Even the administration admits that supply-chain

problems are real. See, e.g., Exec. Order No. 14,017, 86 Fed.

Reg. 11,849 (Mar. 1, 2021). But contrary to what the

government says, the gravity of those supply-chain

problems has not diminished over the past several

months. Rather, the supply-chain problems are as serious

today as they were in March. Just Saturday, “Maersk, one of

the big three shipping companies, said the worst delays

were still on the US west coast where ships were waiting

four weeks to unload.” Martin Farrer, Global supply chain

crisis could last another two years, warn experts, The

Guardian (Dec. 18, 2021), https://bit.ly/3p4hi1M.

It is hard to overstate the extent of the problem caused

by the supply-chain issues on the West Coast. MGA

Entertainment, for example, “has 750 containers of toys

stuck in supply-chain hell at ports around Los Angeles.

Produced in China, those items were supposed to be on

U.S. store shelves this holiday season. That won’t happen.”

Thomas Black, Supply-chain hell ignites economic boom

along U.S.-Mexico border, Pittsburgh Post-Gazette (Dec. 18,

2021), https://bit.ly/326uo5O.

Although many problems are due to backups on the

West Coast, the effect is not limited to that geographic

region. For example, “Shortages of wet dog food persisted,

while out-of-stock levels in areas like third-party and

proprietary branded hardgoods [have] increased” across

the country. Tonya Garcia, Is Fido finicky? Pet food gets hit

by supply-chain disruptions, MarketWatch (Dec. 18, 2021),

https://on.mktw.net/33vPvii. In Minnesota, drivers who

renew their vehicle registration online won’t be receiving

the required stickers on time because of the supply-chain

issues. See Forum News Service, Sticker shock: Supply-

5

chain issues holding up Minnesota DVS tab renewals (Dec.

17, 2021), https://bit.ly/3e6CFZT.

And it’s not just foreign products affected by the

supply-chain problems. American-made products face

similar setbacks. As mentioned above, General Motors is

no longer offering heated seats and steering wheels due to

the supply-chain shortage. Gartenberg, supra. General

Motors is not the only carmaker that cannot meet

consumer demand given the supply-chain problems. For

example, Rivian has said that it cannot fulfill next year’s

production targets because of ongoing supply-chain

issues. See Sergei Klebnikov, Rivian Shares Fall To Record

Low As Company Warns Of Supply Chain Issues, Forbes

(Dec. 17, 2021), https://bit.ly/3sigOH9.

So what is at the root of many of the supply-chain

issues? The answer is simple: A lack of workers. For

example, Maersk says that the four-week backup on the

West Coast is mainly “due to the lack of workers on land.”

Farrer, supra. In other words, there are not enough

workers who can operate the large cranes needed to

unload the container boxes that weigh tons. Nor are there

enough workers to use forklifts and other equipment

needed to move the goods from the shipping containers to

trains and trucks that can transport them across our

nation.

But even then, there is a problem. Although there are

plenty of licensed commercial drivers who could get the

goods from ports to stores, they simply are not taking the

jobs. See Molly Osberg, Black Friday’s Supply Chain

Problems Are Really Labor Problems, The New Republic

(Nov. 25, 2021), https://bit.ly/3mgpmLc. So once the

goods are unloaded there are not enough truckers to

transport them the last miles needed to reach consumers.

A lack of workers is currently most acute for the

shipping industry—a key cog in the supply chain. But the

6

problem is not limited to truckers and crane operators.

“[I]ndustries along the supply chain” are all affected by the

worker shortages. See Megan Leonhardt, 55% of people

blame the government for the supply chain crunch. But

what’s actually behind the slowdown?, Fortune (Dec. 16,

2021), https://bit.ly/3E2EYb6. Even when goods get to

stores, those stores are having trouble keeping the doors

open because of the labor shortage. See Ashley Bowerman,

Labor shortages, supply chain issues affecting retailers,

WSFA-12 News (Dec. 13, 2021), https://bit.ly/32bGIS6. In

sum, labor shortages are causing the supply-chain issues

plaguing our nation’s economy.

The next logical question to ask is: why is there a labor

shortage? One reason that the government refuses to

acknowledge is vaccine mandates. Even in the healthcare

industry, where vaccination rates are much higher than in

the general population, companies dropped their vaccine

mandates after a lower federal court held that Centers for

Medicare & Medicaid Services could not enforce its vaccine

mandate. Robbie Whelan & Melanie Evans, Some Hospitals

Drop Covid-19 Vaccine Mandates to Ease Labor Shortages,

Wall Street Journal (Dec. 13, 2021), https://on.wsj.com/

3GU9JAW. For example, the Cleveland Clinic would have

lost fifteen percent of its workforce had it enforced a

vaccine mandate. Elizabeth Chuck, Growing number of

companies suspend vaccine mandates, including hospitals

and Amtrak, NBC News (Dec. 16, 2021), https://nbcnews.

to/3mCgMGP. That would be devastating to a hospital’s

workforce.

OSHA has jurisdiction over many of these same health

systems that have suspended their vaccine mandates to

address the labor shortage. So this is yet another way that

our economy will be harmed if the Court does not step in

and stay the ETS. Imagine what will happen if more people

cannot receive the necessary care because a medical

provider is short staffed after the ETS takes effect. Not only

7

would the medical industry be negatively affected, all

industries that rely on workers could face hurdles to

economic recovery.

But it may be the supply chain that sees the biggest

shock if the Court does not intervene. The ETS “will further

disrupt supply chains because there is already a dire

shortage of drivers.” Steve Scherer & David Shepardson,

Canadian, U.S. truckers warn vaccine mandates will disrupt

supply chains, Reuters (Dec. 3, 2021), https://reut.rs/

3J1DWQ7. About 16,000 American truck drivers are

unvaccinated and would be affected by the ETS. See id.

That is why the ETS “could have devastating impacts on

the supply chain and the economy.” Id. (quotation

omitted).

Many “truckers would rather quit, retire or change jobs

than get the vaccine through the [ETS].” Katelyn Carralle,

Biden will invest $30 million in the trucking industry to hire

more drivers after the crippling supply chain crisis and

backlash over the vaccine mandates, Daily Mail (Dec. 16,

2021), https://bit.ly/33LaE8B. Trucking company

executives have repeatedly told OSHA and others about

these concerns. See id. But instead of acknowledging that

the ETS needs to go, the response has been to throw

money at the problem; money that will not fix the root

cause of the trucker shortage. See id.

The ETS will thus have a crippling effect on our nation’s

economy. Most companies key to the supply chain have

more than 100 employees. So under the ETS, employees

must show proof of vaccination to their employer or risk

being fired. If the company decides to allow workers to test

weekly to keep their jobs, they can pass on the cost of those

tests to the employees. Failure to test or be vaccinated

means a worker must be removed from the workforce.

There are thus several barriers to hiring and retaining

workers for companies. Many workers or job applicants do

8

not want to tell their bosses their vaccine status. They are

not required to disclosure whether they received the HPV

or the Shingles vaccine. So in their view, they should also

not have to disclose if they have been vaccinated against

COVID-19. Then there is the problem of getting the

vaccine. Many are hesitant because of religious concerns,

medical concerns, or other feelings about the vaccine. For

companies willing to allow testing, these employees might

have to foot the bill. Most supply-chain workers are not

rich and paying for these tests would be a financial burden.

So they are likely to seek employment elsewhere or just

collect unemployment checks, which may be larger than

their net paychecks considering the COVID-19 testing

costs their employers may pass on.

There is no way to view this as helping with the supplychain problem. Experience proves this. Some companies

with vaccine mandates have lifted them. If they attracted

and retained more workers because of the mandates, or

had more of their staff show up to work with the mandates,

they would not have lifted the mandates. These companies

understand that they lose far more workers when they

impose a vaccine mandate than when they leave it up to

individuals to decide. Thus, the ETS will continue to hurt

the economy if the Court does not stay it now.

B.

OSHA’s Delay In Issuing The ETS Shows

The Mandate Should Have Undergone

Notice-And-Comment Rulemaking.

OSHA may issue an emergency temporary standard

only if it “determines (A) that employees are exposed to

grave danger from exposure to substances or agents

determined to be toxic or physically harmful or from new

hazards, and (B) that such emergency standard is

necessary to protect employees from such danger.” 29

U.S.C § 655(c)(1). OSHA cannot satisfy either requirement.

9

Start with whether employees face “grave danger.” At

the start of the pandemic, many of the first people infected

with COVID-19 became very ill. Some even died. But since

then, we have seen a string of variants that have become

dominant. The scientific consensus is that the omicron

variant is the one that will dominate moving forward. This

is because it is much easier to transmit than the current

dominant variant, delta. See Michael Willems, Covid silver

lining: ‘Extremely mild’ Omicron variant is rapidly killing off

much more deadly Delta coronavirus mutation, City A.M.

(Dec. 6, 2021), https://bit.ly/3GWnMWs. But experts are

“ecstatic because” omicron is “much milder and less

deadly” than previous variants. See id.

So if the ETS had been issued at the start of the

pandemic, OSHA may have been able to satisfy the first

requirement for issuing an emergency temporary

standard. Last year, however, OSHA argued vociferously in

the District of Columbia Circuit that it need not issue an

ETS. See In re AFL-CIO, 2020 WL 3125324 (D.C. Cir. June

11, 2020) (per curiam). And the D.C. Circuit agreed with

OSHA. See id. It makes no sense to say that grave danger

was lacking when a much deadlier virus was spreading

only to turn around and argue that there is now a grave

danger despite the less deadly variant becoming the

dominant strain.

But even if COVID-19 currently poses a grave danger to

employees, OSHA still lacked the statutory authority to

issue the ETS. It may issue an emergency temporary

standard only if it is “necessary.” 29 U.S.C. § 655(c)(1). It

was unnecessary to issue the ETS. OSHA had over twentyone months after the pandemic began in the United States

to undertake notice-and-comment rulemaking. It failed to

do so.

OSHA regulations that satisfy notice-and-comment

rulemaking need only be “reasonably necessary or

appropriate.” 29 U.S.C. § 652(8). As the Court has

10

explained, when Congress uses narrower language in one

part of a statute, it is assumed to have a different meaning

than broader language passed by the same Congress. See

Wisconsin Cent. Ltd. v. United States, 138 S. Ct. 2067, 2072

(2018). Congress used the narrower “necessary” when

defining when OSHA may regulate grave dangers under

Section 655(c)(1). In other words, “Congress intended a

carefully restricted use of the emergency temporary

standard.” Fla. Peach Growers Ass’n, Inc. v. U.S. Dep’t of Lab.,

489 F.2d 120, 130 n.16 (5th Cir. 1974).

OSHA “cannot use its ETS powers as a stop-gap

measure.” BST Holdings, L.L.C. v. OSHA, 17 F.4th 604, 616

(5tb Cir. 2021) (cleaned up). Rather, the emergency

temporary standard process can be used only as “an

unusual response to exceptional circumstances.” Dry Color

Mfrs. Ass’n, Inc. v. DOL, 486 F.2d 98, 104 n.9a (3d Cir. 1973);

see also S. Rep. No. 91-1282, at 7 (1970).

Section 655(c) resembles 5 U.S.C. § 533(b)(B), which

permits other federal agencies to bypass notice-andcomment rulemaking if they can prove “good cause.”

Because many agencies try to use this good-cause

exception to eliminate notice-and-comment rulemaking,

there is a good body of case law explaining what qualifies

as good cause. These decisions show that delay in deciding

to issue a regulation cannot form the good cause needed to

bypass notice-and-comment rulemaking.

In one case, the District of Columbia Circuit explained

that “the FAA [wa]s foreclosed from relying on the good

cause exception” because it “waited almost nine months

before taking action.” Air Transp. Ass’n of Am. v. DOT, 900

F.2d 369, 379 (D.C. Cir. 1990), vacated on other grounds,

498 U.S. 1077 (1991). The D.C. Circuit similarly has found

that eight-month and seven-month delays foreclosed the

possibility of agencies invoking the good-cause exception.

See Env’tl Def. Fund v. EPA, 716 F.2d 915, 921 (D.C. Cir.

1983) (per curiam); Nat’l Ass’n of Farmworkers Orgs. v.

11

Marshall, 628 F.2d 604, 622 (D.C. Cir. 1980). Proper

notice-and-comment rulemaking can be done in seven

months or less. Yet in each case the agency tried to bypass

that step by using the good-cause exception. Each time, the

D.C. Circuit properly held that the agency could not do so.

The COVID-19 pandemic hit the United States in March

2020—twenty-one months before OSHA issued the ETS.

Vaccines became available in December 2020, eleven

months before the ETS. And President Biden took office in

January 2021, ten months before OSHA issued the ETS. As

the cases above show, such extensive delay in issuing an

emergency temporary standard is fatal. OSHA had to go

through the notice-and-comment rulemaking process if it

wanted a vaccine mandate.

OSHA knows how stringent the requirements are for

using its emergency temporary standard authority. Before

this year, it issued only nine since it was first given that

power over fifty years ago. Of those, only one survived

judicial challenge. See Cong. Research Serv., Occupational

Safety and Health Administration (OSHA): Emergency

Temporary Standards (ETS) and COVID-19, R46288, 35-36

(Sept. 13, 2021). But rather than stick to its statutory

authority and issue emergency temporary standards only

when necessary to address a grave danger, OSHA caved to

President Biden’s pressure and issued the illegal ETS.

The Sixth Circuit then twisted itself into a pretzel to

find that OSHA had the statutory authority to issue the

ETS. Rather than give the word “necessary” its common

meaning, the majority held that an emergency temporary

standard need not be indispensable to be necessary. See

Phillips App. 25-26. But if the ETS is not indispensable, it

cannot be necessary to combat a grave danger.

The ETS therefore was unnecessary. OSHA has a better

chance of defending a vaccine mandate issued through

notice-and-comment rulemaking than it does through the

12

emergency temporary standard process. Yet the Sixth

Circuit turned a blind eye toward the different standards

that apply in the two contexts. OSHA’s lack of statutory

authority to issue the ETS means that Applicants are likely

to succeed on their challenges. Thus, the Court should stay

the ETS pending final disposition of the parties’

challenges.

II.

THE COURT SHOULD GRANT CERTIORARI BEFORE

JUDGMENT.

Just two months ago, the Court granted certiorari

before judgment in two cases. See Whole Woman’s Health

v. Jackson, 2021 WL 4928617 (U.S. Oct. 22, 2021) (per

curiam); United States v. Texas, 142 S. Ct. 14, 14 (2021) (per

curiam). The Court then set an expedited briefing schedule

unseen in over twenty years. Only seven weeks after

granting certiorari before judgment, the Court largely

affirmed the Fifth Circuit in one case and dismissed as

improvidently granted the other. See Whole Woman’s

Health v. Jackson, 2021 WL 5855551 (U.S. Dec. 10, 2021);

United States v. Texas, 2021 WL 5855550 (U.S. Dec. 10,

2021) (per curiam).

The Court granted certiorari before judgment despite

no real deadline to act and knowing that the Fifth Circuit

got it mostly right. The Texas law at issue in the two cases

was in effect when certiorari was granted and remains in

effect today. There was no sunset provision that ensured

the case would go away at the end of the year requiring the

Court’s immediate attention.

But here the situation is much more dire. The ETS can

last only six months. See 29 U.S.C. § 655(c)(3). That means

if the Court lets the case run its normal course, by the time

this Court could rule on a certiorari petition the case

would become moot. In other words, there is a ticking

clock in this case. If the Court does not act now and grant

certiorari before judgment, it will lose the chance to decide

13

important questions about our government’s structure

and OSHA’s authority over the economy.

That’s not all. The Sixth Circuit’s decision is grievously

wrong. As explained in all eight applications, the dissents

from denial of initial hearing en banc, the panel dissent,

and the Fifth Circuit panel’s majority opinion, there are

both statutory and constitutional problems with the ETS.

So unlike the two cases the Court agreed to hear in

October, there is little chance that the Court would leave

the Sixth Circuit’s decision in place if it considered the

merits of the challenges to the ETS. Rather, it is far more

likely that the Court would reverse and find that the ETS

does not comply with the U.S. Code or Constitution.

*

*

*

The ticking clock is one reason that the Court has the

certiorari before judgment process. In some rare cases,

two circuit judges, who disagree with most circuit judges

to consider the question, can act as a court of last resort.

The Founding Fathers set up the Judiciary to have one

Supreme Court—this Court. The only way the Court can

fulfill this duty is to grant certiorari before judgment and

decide the important issues presented.

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CONCLUSION

The Court should stay the ETS and grant certiorari

before judgment.

Respectfully submitted,

John M. Masslon II

Counsel of Record

Cory L. Andrews

WASHINGTON LEGAL FOUNDATION

2009 Massachusetts Ave. NW

Washington, DC 20036

(202) 588-0302

jmasslon@wlf.org

DECEMBER 2021