Supreme Court PIL WRIT PETITION (CIVIL) NO. 607 OF 2021 IA no. 110625/2021
IN THE SUPREME COURT OF INDIA (CIVIL ORIGINAL JURISDICTION)
WRIT PETITION (CIVIL) NO. 607 OF 2021
IN THE MATTER OF:
DR. JACOB PULIYEL ...PETITIONERS VERSUS
UNION OF INDIA & ANR. â€¦RESPONDENTS
S.NO. PARTICULARS COPIES
1. ADDITIONAL AFFIDAVIT ON BEHALF OF THE PETITIONER 1
2. ANNEXURE A1 TO ANNEXURE A3 1
NEW DEHI: DATED: 26.11.2021
(PRASHANT BHUSHAN) COUNSEL FOR THE PETITIONER 301, NEW LAWYERS CHAMBERS SUPREME COURT OF INDIA NEW DELHI 110 001
CODE NO.: 515
DOL RAJ BHANDARI, REGD. CLERK, I.C. NO. 3745, MOBILE NO. 9868255076
IN THE SUPREME COURT OF INDIA (CIVIL ORIGINAL JURISDICTION)
WRIT PETITION (CIVIL) NO. 607 OF 2021
IN THE MATTER OF:
DR. JACOB PULIYEL ...PETITIONERS VERSUS
UNION OF INDIA & ANR. â€¦RESPONDENTS
(FOR INDEX KINDLY SEE INSIDE)
(ADDITIONAL AFFIDAVIT ON BEHALF OF THE PETITIONER)
COUNSEL FOR THE PETITIONER: PRASHANT BHUSHAN
S. NO. PARTICULARS PAGES
1. Additional Affidavit on behalf of the Petitioner 1-6
2. Annexure: A1: A copy of the report in The Hindu dated 17th November titled â€œM.P. links ration benefits to COVID-19 vaccination 7-8
3. Annexure A2: A copy of the circular dated 18.11.2021 issued by the Directorate of Public Health, Tamil Nadu 99--1110
4. Annexure A3: A copy of the order dated 12.11.2021 by the U.S. Court of Appeals for the Fifth Circuit in BST Holdings, LLC v. OSHA No. 21- 60845 1121-3-332
as Annexure A1 (Page 7 to 8 ).
to 3323 ).
Vaccination must for being in public places
NOVEMBER 19, 2021 23:25 IST
NOVEMBER 20, 2021 03:54 IST
Over the past few weeks, the uptake of vaccination, both among those yet to take the first dose and those due/overdue for the second, has slowed down in Tamil Nadu.
DPH invokes provisions under the Tamil Nadu Public Health Act
Through a circular issued on Thursday, the Directorate of Public Health has made vaccination against COVID-19 mandatory for people in public places in Tamil Nadu.
In a move to make COVID-19 vaccination compulsory for the eligible population, the Directorate of Public Health (DPH) and Preventive Medicine has invoked provisions under the Tamil Nadu Public Health Act, 1939, to ensure that public places, including markets, theatres and factories, are occupied only by those vaccinated against COVID-19.
Over the past few weeks, the uptake of vaccination, both among those yet to take the first dose and those due/overdue for the second, has slowed down in the State. The overall coverage of inoculation stands at 6,45,72,433.
In the circular issued to deputy directors of health services and the city medical officer of the Greater Chennai Corporation, T.S. Selvavinayagam, Director of Public Health, said under Section 76 clause (b) of sub-section (2) of the Act, the DPH had the power to make vaccination and preventive inoculations compulsory, subject to provisions of sub-section (3).
The DPH has instructed its deputy directors to implement certain provisions of the Act â€œsuitably informing the owner/occupierâ€ of the listed places, and ensure that all places notified under Section 71 sub-section (1) are occupied by persons â€œwho are vaccinated against COVID-19â€ to prevent the spread of the infection.
Under Section 71 sub-section (1), no person who knows that he is suffering from a notified disease shall expose other people to the risk of infection, by his presence or conduct, in any street or public place, market, theatre or other place of entertainment or assembly, school, college, playground, hotel, hostel, boarding house, choultry, resthouse or club, any factory or shop.
As per the Act, the DPH may, from time to time, as occasion requires, recommend for the adoption by any local authority, measures necessary for improving the public health administration in the local area or for safeguarding public health, the circular said.
Dr. Selvavinayagam said they would be requesting owners/occupiers to ensure that only vaccinated people are allowed.
â€œIt is a step towards a safe Tamil Nadu. With 74% first-dose coverage and 37% second-dose coverage, this strategy will definitely help us reach the unvaccinated,â€ he said.
Link: https://www.thehindu.com/news/national/tamil-nadu/vaccination- must-for-being-in-public-places/article37588675.ece
ANNEXURE: P11 11
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals Fifth Circuit
November 12, 2021
Lyle W. Cayce Clerk
BST HOLDINGS, L.L.C.; RV TROSCLAIR, L.L.C.; TROSCLAIR AIRLINE, L.L.C.; TROSCLAIR ALMONASTER, L.L.C.; TROSCLAIR AND SONS, L.L.C.; TROSCLAIR ; TROSCLAIR, INCORPORATED; TROSCLAIR CARROLLTON, L.L.C.; TROSCLAIR CLAIBORNE, L.L.C.; TROSCLAIR DONALDSONVILLE, L.L.C.; TROSCLAIR HOUMA, L.L.C.; TROSCLAIR JUDGE PEREz, L.L.C.; TROSCLAIR LAKE FOREST, L.L.C.; TROSCLAIR MORRISON, L.L.C.; TROSCLAIR PARIS, L.L.C.; TROSCLAIR TERRY, L.L.C.; TROSCLAIR WILLIAMS, L.L.C.; RYAN DAILEY; JASAND GAMBLE; CHRISTOPHER L. JONES; DAVID JOHN LOSCHEN; SAMUEL ALBERT REYNA; KIP STOVALL; ANSWERS IN GENESIS, INCORPORATED; AMERICAN FAMILY ASSOCIATION, INCORPORATED; BURNETT SPECIALISTS; CHOICE STAFFING, L.L.C.; STAFF FORCE, INCORPORATED; LEADINGEDGE PERSONNEL, LIMITED; STATE OF TEXAS; HT STAFFING, LIMITED; dOING BUSINESS AS HT GROUP; THE STATE OF LOUISIANA; COX OPERATING, L.L.C.; DIS-TRAN STEEL, L.L.C.; DIS-TRAN PACKAGED SUBSTATIONS, L.L.C.; BETA ENGINEERING, L.L.C. OPTIMAL FIELD SERVICES, L.L.C.; THE STATE OF MISSISSIPPI; GULF COAST RESTAURANT GROUP, INCORPORATED; THE STATE OF SOUTH CAROLINA; THE STATE OF UTAH; WORD OF GOD FELLOWSHIP, INCORPORATED, dOING BUSINES AS DAYSTAR TELEVISION NETWORK,
OCCUPATIONAL SAFETY AND HEALTH AdMINISTRATION, UNITED STATES DEPARTMENT OF LABOR; UNITED STATES
No. 21-60845 12
DEPARTMENT OF LABOR; MARTIN J. WALSH, SECRETARY, U.S. DEPARTMENT OF LABOR; DOUGLAS PARKER, IN HIS OffICIAL CAPACITY AS ASSISTANT SECRETARY OF LABOR FOR OCCUPATIONAL SAFETY AND HEALTH,
Petition for Review of Occupational Safety and Health Administration
Emergency Temporary Standard
Before JONES, DUNCAN, and ENGELHARDT, Circuit Judges. KURT D. ENGELHARDT, Circuit Judge:
The Occupational Safety and Health Administration (OSHA) â€œreasonably determinedâ€ in June 2020 that an emergency temporary standard (ETS) was â€œnot necessaryâ€ to â€œprotect working people from occupational exposure to infectious disease, including COVID-19.â€ In re AFL-CIO, 2020 WL 3125324, at *1 (D.C. Cir. June 11, 2020). This was not
the first time OSHA had done this; it has refused several times to issue ETSs despite legal action urging it do so. See, e.g., In re Intâ€™l Chem. Workers Union, 830 F.2d 369 (D.C. Cir. 1987) (per curiam). In fact, in its fifty-year history, OSHA has issued just ten ETSs.1 Six were challenged in court; only one survived.2 The reason for the rarity of this form of emergency action is
1 CONG. RSCH. SERV., OCCUPATIONAL SAFETY AND HEALTH
AdMINISTRATION (OSHA): EMERGENCY TEMPORARY STANDARDS (ETS) AND COVID-19, at 34 tbl. A-1 (Nov. 10, 2021), available at https://crsreports.congress.gov/product/pdf/R/R46288.
2 It bears noting at the outset that most of the few ETSs issued by OSHA were immediately stayed pending merits review. See Asbestos Info. Assâ€™n/N. Am. v. OSHA, 727 F.2d 415, 418 (5th Cir. 1984); Indus. Union Depâ€™t, AFL-CIO v. Bingham, 570 F.2d 965, 968 (D.C. Cir. 1977); Taylor Diving Salvage Co. v. U.S. Depâ€™t of Lab., 537 F.2d 819, 820â€“21 (5th
simple: courts and the Agency have agreed for generations that â€œ[e]xtraordinary power is delivered to [OSHA] under the emergency provisions of the Occupational Safety and Health Act,â€ so â€œ[t]hat power should be delicately exercised, and only in those emergency situations which require it.â€ Fla. Peach Growers Assâ€™n v. U.S. Depâ€™t of Lab., 489 F.2d 120, 129â€“ 30 (5th Cir. 1974).
This case concerns OSHAâ€™s most recent ETSâ€”the Agencyâ€™s November 5, 2021 Emergency Temporary Standard (the â€œMandateâ€) requiring employees of covered employers to undergo COVID-19 vaccination or take weekly COVID-19 tests and wear a mask.3 An array of petitioners seeks a stay barring OSHA from enforcing the Mandate during the pendency of judicial review. On November 6, 2021, we agreed to stay the Mandate pending briefing and expedited judicial review. Having conducted that expedited review, we reaffirm our initial stay.
OSHA promulgated its much anticipated4 vaccine mandate on November 5, 2021. Framed as an ETS, the Mandate requires all employers of 100 or more employees to â€œdevelop, implement, and enforce a mandatory COVID-19 vaccination policyâ€ and require any workers who remain
Cir. 1976) (per curiam); Fla. Peach Growers Assâ€™n v. U.S. Depâ€™t of Lab., 489 F.2d 120, 126 (5th Cir. 1974).
3 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).
4 Debates over the Biden Administrationâ€™s forthcoming vaccine mandate roiled the country throughout much of the Fall. For obvious reasons, the Mandate affects every person in America in one way or another.
unvaccinated to â€œundergo [weekly] COVID-19 testing and wear a face covering at work in lieu of vaccination.â€ 86 Fed. Reg. 61,402, 61,402.
On the afternoon of the Mandateâ€™s publication, a diverse group of petitioners (including covered employers, States, religious groups, and individual citizens) moved to stay and permanently enjoin the mandate in federal courts of appeals across the nation. Finding â€œcause to believe there are grave statutory and constitutional issues with the Mandate,â€ we intervened and imposed a temporary stay on OSHAâ€™s enforcement of the Mandate. For ease of judicial review, and in light of the pressing need to act immediately, we consolidated our courtâ€™s petitions under the case number captioned above.
Many of the petitioners are covered private employers within the geographical boundaries of this circuit.5 Their standing6 to sue is obviousâ€” the Mandate imposes a financial burden upon them by deputizing their participation in OSHAâ€™s regulatory scheme, exposes them to severe financial risk if they refuse or fail to comply, and threatens to decimate their workforces (and business prospects) by forcing unwilling employees to take their shots, take their tests, or hit the road.
5 Because these petitioners are the targets of the Mandate and bear the brunt of OSHAâ€™s regulatory power, we principally analyze the petitions from their perspective. This is not to say that the claims of other petitioners such as States or individual citizens would be any less successful on a thorough analysis.
6 â€œOnly one of the petitioners needs to have standing to permit us to consider the petition for review.â€ Massachusetts v. EPA, 549 U.S. 497, 518 (2007).
The petitioners seek a stayâ€”and ultimately a permanent injunctionâ€” of the Mandateâ€™s enforcement pending full judicial review of the Mandate. We address their request for a stay today.7
The â€œtraditional stay factors . . . govern a request for a stay pending judicial review.â€ Nken v. Holder, 556 U.S. 418, 426 (2009). Under the traditional stay standard, a court considers four factors: â€œ(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.â€ Hilton v. Braunskill, 481 U.S. 770, 776 (1987).
Each of these factors favors a stay here.
We first consider whether the petitionersâ€™ challenges to the Mandate are likely to succeed on the merits. For a multitude of reasons, they are.
7 Our November 6, 2021 stay order preserved the status quo during the pendency of briefing. The unusual procedural posture of this case makes for an unusual process. Ordinarily, a federal plaintiff aggrieved by an adversaryâ€™s threatened course of action must go to a district court to seek injunctive relief at the outset. In this ordinary scenario, a preliminary injunction precedes a permanent injunction, and trial-court review precedes appellate review. But this is not a typical case. Here, the statute giving OSHA the power to issue emergency temporary standards like the Mandate also provides for direct and immediate judicial review in â€œthe United States court of appeals for the circuit whereinâ€ â€œ[a]ny person who may be adversely affected byâ€ an ETS â€œresides or has his principal place of business.â€ See 29 U.S.C. Â§ 655(f). Satisfied of our jurisdiction to proceed under that provision, but mindful of our unusual procedural posture, we apply the traditional factors for a stay pending judicial review and draw factual support from the attachments to the pleadings, uncontested facts, and judicial notice.
We begin by stating the obvious. The Occupational Safety and Health Act, which created OSHA, was enacted by Congress to assure Americans â€œsafe and healthful working conditions and to preserve our human resources.â€ See 29 U.S.C. Â§ 651 (statement of findings and declaration of purpose and policy). It was notâ€”and likely could not be, under the Commerce Clause and nondelegation doctrine8â€”intended to authorize a workplace safety administration in the deep recesses of the federal bureaucracy to make sweeping pronouncements on matters of public health affecting every member of society in the profoundest of ways. Cf. Ala. Assâ€™n of Realtors v. HHS, 141 S. Ct. 2485, 2488â€“90 (2021) (per curiam).
On the dubious assumption that the Mandate does pass constitutional musterâ€”which we need not decide today9â€”it is nonetheless fatally flawed on its own terms. Indeed, the Mandateâ€™s strained prescriptions combine to make it the rare government pronouncement that is both overinclusive (applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) and underinclusive (purporting to save employees with 99 or more coworkers from a â€œgrave dangerâ€ in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same
8 The nondelegation doctrine constrains Congressâ€™s ability to delegate its legislative authority to executive agencies. See, e.g., Mistretta v. United States, 488 U.S. 361, 371â€“72 (1989) (â€œThe Constitution provides that Â³[a]ll legislative Powers herein granted shall be vested in a Congress of the United Statesâ€™ . . . and we have long insisted that Â³the integrity and maintenance of the system of government ordered by the Constitutionâ€™ mandate that Congress generally cannot delegate its legislative power to another Branch.â€ (first quoting U.S. CONST. art. I, Â§ 1; then quoting Field v. Clark, 143 U.S. 649, 692 (1892))).
9 But see infra subsection II.A.2.f.
threat). The Mandateâ€™s stated impetusâ€”a purported â€œemergencyâ€ that the entire globe has now endured for nearly two years,10 and which OSHA itself spent nearly two months responding to11â€”is unavailing as well. And its promulgation grossly exceeds OSHAâ€™s statutory authority.
After the President voiced his displeasure with the countryâ€™s vaccination rate in September,12 the Administration pored over the U.S. Code in search of authority, or a â€œwork-around,â€13 for imposing a national
10 As Justice Gorsuch recently observed, societyâ€™s interest in slowing the spread of COVID-19 â€œcannot qualify as [compelling] forever,â€ for â€œ[i]f human nature and history teach anything, it is that civil liberties face grave risks when governments proclaim indefinite states of emergency.â€ Does 1â€“3 v. Mills, --- S. Ct. ---, 2021 WL 5027177, at *3 (Oct. 29, 2021) (Gorsuch, J., dissenting); see also Fla. Peach Growers, 489 F.2d at 131 (situation ongoing for â€œlast several years . . . fail[ed] to qualify for [OSHA] emergency measuresâ€).
11 The President announced his intention to impose a national vaccine mandate on September 9, 2021. See, e.g., Kevin Liptak & Kaitlan Collins, Biden Announces New Vaccine Mandates that Could Cover 100 Million Americans, CNN (Sept. 9, 2021), https://www.cnn.com/2021/09/09/politics/joe-biden-covid-speech/index.html (â€œÂ³We've been patient, but our patience is wearing thin, and your refusal has cost all of us,â€™ Biden said, his tone hardening toward Americans who still refuse to receive a vaccine despite ample evidence of their safety and full approval of one â€). OSHA issued the
Mandate nearly two months later, on November 5, 2021, and the Mandate itself prominently features yet another two-month delay. One could query how an â€œemergencyâ€ could prompt such a â€œdeliberateâ€ response. In similar cases, weâ€™ve held that OSHAâ€™s failure to act promptly â€œdoes not conclusively establish that a situation is not an emergency,â€ but â€œmay be evidence that a situation is not a true emergency.â€ Asbestos Info., 727 F.2d at 423 (emphasis added).
12 See supra note 11.
13 On September 9, 2021, White House Chief of Staff Ron Klain retweeted MSNBC anchor Stephanie Ruhleâ€™s tweet that stated, â€œOSHA doing this vaxx mandate as an emergency workplace safety rule is the ultimate work-around for the Federal govt to require vaccinations.â€ See, e.g., Petâ€™rs Burnett Specialists, Choice Staffing, LLC, and Staff Force Inc.â€™s Reply Brief at 4 (emphasis added).
vaccine mandate. The vehicle it landed on was an OSHA ETS. The statute empowering OSHA allows OSHA to bypass typical notice-and-comment proceedings for six months by providing â€œfor an emergency temporary standard to take immediate effect upon publication in the Federal Registerâ€ if it â€œdetermines (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.â€ 29 U.S.C. Â§ 655(c)(1).
As the name suggests, emergency temporary standards â€œare an
Â³unusual responseâ€™ to Â³exceptional circumstances.'â€œ Intâ€™l Chem. Workers, 830 F.2d at 371 (quoting Pub. Citizen Health Rsch. Grp. v. Auchter, 702 F.2d 1150, 1155 (D.C. Cir. 1983)). Thus, courts have uniformly observed that OSHAâ€™s authority to establish emergency temporary standards under
Â§ 655(c) â€œis an Â³extraordinary power' that is to be Â³delicately exercised' in only certain Â³limited situations.â€™â€ Id. at 370 (quoting Pub. Citizen, 702 F.2d at 1155).14
But the Mandate at issue here is anything but a â€œdelicate exerciseâ€ of this â€œextraordinary power.â€ Cf. Pub. Citizen, 702 F.2d at 1155. Quite the opposite, rather than a delicately handled scalpel, the Mandate is a one-size- fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workersâ€™ varying degrees of susceptibility to the supposedly â€œgrave dangerâ€ the Mandate purports to address.
14 The Agency has thus conceded in the past that â€œ[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.â€ See Department of Laborâ€™s Resp. to the Emergency Pet. for a Writ of Mandamus at 33â€“34, In re AFL-CIO, No. 20-1158 (D.C. Cir. May 29, 2020) [hereinafter OSHA D.C. Circuit Brief].
Thus, as Â§ 655(c)(1) plainly provides, to be lawfully enacted, an ETS must: (1) address â€œsubstances or agents determined to be toxic or physically harmfulâ€â€”or â€œnew hazardsâ€â€”in the workplace; (2) show that workers are exposed to such â€œsubstances,â€ â€œagents,â€ or â€œnew hazardsâ€ in the workplace; (3) show that said exposure places workers in â€œgrave dangerâ€; and (4) be â€œnecessaryâ€ to alleviate employeesâ€™ exposure to gravely dangerous hazards in the workplace. As we have noted in the past, the precision of this standard makes it a difficult one to meet. See Fla. Peach Growers, 489 F.2d at 130 (observing that OSHAâ€™s ETS authority â€œrequires determination of danger from exposure to harmful substances, not just a danger of exposure; and, not exposure to just a danger, but to a grave danger; and, not the necessity of just a temporary standard, but that an emergency [temporary] standard is necessaryâ€).15
In its brief, Texas makes a compelling argument that Â§ 655(c)(1)â€™s neighboring phrases â€œsubstances or agentsâ€ and â€œtoxic or physically harmfulâ€ place an airborne virus beyond the purview of an OSHA ETS in the first place. To avoid â€œgiving unintended breadth to the Acts of Congress,â€ courts â€œrely on the principle of noscitur a sociisâ€”a word is known by the company it keeps.â€ Yates v. United States, 574 U.S. 528, 543 (2015) (cleaned up). Here, OSHAâ€™s attempt to shoehorn an airborne virus that is both widely present in society (and thus not particular to any workplace) and non-life-
15 In prior litigation, OSHA acknowledged that many â€œworkplacesâ€ covered by a COVID-19 ETS â€œare not merely workplaces,â€ but are also â€œstores, restaurants, and other places occupied by workers and the general public alike, in which the measures called for require a broader lensâ€”and at times a broader mandateâ€”than available to OSHA.â€ See OSHA D.C. Circuit Brief at 20.
threatening to a vast majority of employees into a neighboring phrase connoting toxicity and poisonousness is yet another transparent stretch. Other cases involving OSHA (though not ETSs per se) shed further light on the intended meaning of these terms. See, e.g., UAW v. OSHA, 938 F.2d 1310, 1314 (D.C. Cir. 1991). See generally Indus. Union Depâ€™t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607 (1980). Any argument OSHA may make that COVID-19 is a â€œnew hazardâ€ would directly contradict OSHAâ€™s prior representation to the D.C. Circuit that â€œ[t]here can be no dispute that COVID-19 is a recognized hazard.â€ See OSHA D.C. Circuit Brief at 25 (emphasis added).
A natural first step in enacting a lawful ETS is to show that employees covered by the ETS are in fact exposed to the dangerous substances, agents, or hazards at issueâ€”here, COVID-19. See, e.g., Intâ€™l Chem. Workers, 830 F.2d at 371 (noting OSHAâ€™s stated view â€œthat a finding of Â³grave danger' to support an ETS be based upon exposure in actual levels found in the workplaceâ€). As it pertains to the vast majority of private employees covered by the Mandate, however, OSHA fails to meet this threshold burden. In defending the Mandate before this court, the Government credits OSHA with â€œdescrib[ing] myriad studies showing workplace [COVID-19] Â³clusters' and Â³outbreaks' and other significant Â³evidence of workplace transmission' and Â³exposure.'â€œ See Respâ€™tsâ€™ Oppâ€™n to Emergency Stay Mot. at 8. But this misses the mark, as OSHA is required to make findings of exposureâ€”or at least the presence of COVID-19â€”in all covered workplaces.
Of course, OSHA cannot possibly show that every workplace covered by the Mandate currently has COVID-positive employees, or that every industry covered by the Mandate has had or will have â€œoutbreaks.â€ As
discussed below, this kind of overbreadth plagues the Mandate generally. See infra subsection II.A.2.d.
Equally problematic, however, is that it remains unclear that COVID- 19â€”however tragic and devastating the pandemic has beenâ€”poses the kind of grave danger Â§ 655(c)(1) contemplates. See, e.g., Intâ€™l Chem. Workers, 830 F.2d at 371 (noting that OSHA itself once concluded â€œthat to be a Â³grave danger,â€™ it is not sufficient that a chemical, such as cadmium, can cause cancer or kidney damage at a high level of exposureâ€ (emphasis added)). For starters, the Mandate itself concedes that the effects of COVID-19 may range from â€œmildâ€ to â€œcritical.â€ As important, however, the status of the spread of the virus has varied since the President announced the general parameters of the Mandate in September. (And of course, this all assumes that COVID-19 poses any significant danger to workers to begin with; for the more than seventy-eight percent16 of Americans aged 12 and older either fully or partially inoculated against it, the virus posesâ€”the Administration assures usâ€”little risk at all.) See, e.g., 86 Fed. Reg. 61,402, 61,402â€“03 (â€œCOVID-19 vaccines authorized or approved by the [FDA] effectively protect vaccinated individuals against severe illness and death from COVID-19.â€).
The Administrationâ€™s prior statements in this regard further belie the notion that COVID-19 poses the kind of emergency that allows OSHA to take the extreme measure of an ETS. In reviewing agency pronouncements, courts need not turn a blind eye to the statements of those issuing such pronouncements. See, e.g., FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). In fact, courts have an affirmative duty not to do so. It is thus
16 See CDC, COVID DATA TRACKER, https://covid.cdc.gov/covid-data-
critical to note that the Mandate makes no serious attempt to explain why OSHA and the President himself17 were against vaccine mandates before they were for one here. See, e.g., Occupational Exposure to Bloodborne Pathogens, 54 Fed. Reg. 23,042, 23,045 (May 30, 1989) (â€œHealth in general is an intensely personal matter OSHA prefers to encourage rather than try to
force by governmental coercion, employee cooperation in [a] vaccination program.â€); Letter from Loren Sweatt, Principal Deputy Assistant Secâ€™y, OSHA, to Richard L. Trumka, President, AFL-CIO at 3 (May 29, 2020) [hereinafter Sweatt Letter] (acknowledging as a general matter that it â€œwould not be necessary for OSHA to issue an ETS to protect workers from infectious diseasesâ€ because â€œOSHA lacks evidence to conclude that all infectious diseases to which employees may be exposed at a workplace constitute a Â³grave danger' for which an ETS is an appropriate remedyâ€œ). Because it is generally â€œarbitrary or capriciousâ€ to â€œdepart from a prior policy sub silentio,â€ agencies must typically provide a â€œdetailed explanationâ€ for contradicting a prior policy, particularly when the â€œprior policy has engendered serious reliance interests.â€ FCC v. Fox, 556 U.S. at 515. OSHAâ€™s reversal here strains credulity, as does its pretextual basis.18 Such shortcomings are all hallmarks of unlawful agency actions.
To be sure, â€œOSHAâ€™s assessment of scientifically complex [facts]
and its balancing of the competing policies that underlie the decision whether to issue an ETS . . . are entitled to great deference,â€ but this is not a case
17 In December of 2020, the President was quoted as saying, â€œNo I donâ€™t think [vaccines] should be mandatory.â€ See, e.g., Jacob Jarvis, Fact Check: Did Joe Biden Reject
Idea of Mandatory Vaccines in December 2020, NEWSWEEK (Sept. 10, 2021),
18 See supra note 13 (Klain endorsement of the term â€œwork-aroundâ€).
where any amount of deference would make a bit of difference. Intâ€™l Chem. Workers, 830 F.2d at 371.
We next consider the necessity of the Mandate. The Mandate is staggeringly overbroad. Applying to 2 out of 3 private-sector employees in America, in workplaces as diverse as the country itself, the Mandate fails to consider what is perhaps the most salient fact of all: the ongoing threat of COVID-19 is more dangerous to some employees than to other employees. All else equal, a 28 year-old trucker spending the bulk of his workday in the solitude of his cab is simply less vulnerable to COVID-19 than a 62 year-old prison janitor. Likewise, a naturally immune unvaccinated worker is presumably at less risk than an unvaccinated worker who has never had the virus. The list goes on, but one constant remainsâ€”the Mandate fails almost completely to address, or even respond to, much of this reality and common sense.
Moreover, earlier in the pandemic, the Agency recognized the practical impossibility of tailoring an effective ETS in response to COVID-
19. See OSHA D.C. Circuit Brief at 16, 17, 21, 26 (â€œBased on substantial evidence, OSHA determined that an ETS is not necessary both because there are existing OSHA and non-OSHA standards that address COVID-19 and because an ETS would actually be counterproductive. . . . To address all employers and to do so with the requisite dispatch, an ETS would at best be an enshrinement of these general and universally known measures that are already enforceable through existing OSHA tools that require employers to assess and address extant hazards. OSHAâ€™s time and resources are better spent issuing industry-specific guidance that adds real substance and permits flexibility as we learn more about this virus. Given that we learn more about COVID-19 every day, setting rules in stone through an ETS (and later a
permanent rule) may undermine worker protection by permanently mandating precautions that later prove to be inefficacious. . . . [A]n ETS could only enshrine broad legal standards that are already in place or direct employers to develop COVID-19 response plans specific to their businesses, something employers are already doing. Such a step would be superfluous at best and could be counterproductive to ongoing state, local, and private efforts. . . . Additionally, employers may choose any effective method to abate a recognized hazard under the general duty clause. Contrary to AFL- CIOâ€™s argument, this flexibility is likely to improve worker safety, because employers must choose a means of abatement that eliminates the hazard or materially reduces it to the extent feasible.â€). OSHA itself admitted that â€œan ETS once issued could very well become ineffective or counterproductive, as it may be informed by incomplete or ultimately inaccurate information.â€ Id. at 30, 32â€“33 (acknowledging further that â€œ[a]dequate safeguards for workers could differ substantially based on geographic location, as the pandemic has had dramatically different impacts on different parts of the country. State and local requirements and guidance on COVID-19 are thus critical to employers in determining how to best protect workers, and OSHA must retain flexibility to adapt its advice regarding incorporation of such local guidance, where appropriate [A]n ETS meant to broadly cover all workers with potential
exposure to COVID-19â€”effectively all workers across the countryâ€”would have to be written at such a general level that it would risk providing very little assistance at allâ€).
In light of this immense complexity, one might naturally ask the Agencyâ€”is this situation truly amenable to a one-size-fits-all Mandate? The likely answer may be why OSHA has in the past â€œdetermined that the best approach for responding to the pandemic is to enforce the existing OSH Act requirements that address infectious disease hazards, while also issuing detailed, industry-specific guidance,â€ which is generally â€œmore effective
than promulgating a rigid set of requirements for all employers in all industries based on limited information.â€ See Sweatt Letter at 2. In sum, as OSHA itself has previously acknowledged, an ETS appears to be a â€œpoorly- suited approach for protecting workers against [COVID-19] because no standard that covers all of the Nationâ€™s workers would protect all those workers equally.â€ See id. at 9.
At the same time, the Mandate is also underinclusive. The most vulnerable worker in America draws no protection from the Mandate if his company employs 99 workers or fewer. The reason why? Because, as even OSHA admits, companies of 100 or more employers will be better able to administer (and sustain) the Mandate. See 86 Fed. Reg. 61,402, 61,403 (â€œOSHA seeks information about the ability of employers with fewer than
100 employees to implement COVID-19 vaccination and/or testing programs.â€). That may be true. But this kind of thinking belies the premise that any of this is truly an emergency. Indeed, underinclusiveness of this sort is often regarded as a telltale sign that the governmentâ€™s interest in enacting a liberty-restraining pronouncement is not in fact â€œcompelling.â€ Cf. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 542â€“46 (1993) (cityâ€™s ban on religious animal sacrifice but corresponding allowance of other activities similarly endangering public health belied its purportedly â€œcompellingâ€ interest in safe animal disposal practices). The underinclusive nature of the Mandate implies that the Mandateâ€™s true purpose is not to enhance workplace safety, but instead to ramp up vaccine uptake by any means necessary.19
19 The Mandate is also underinclusive in the solutions it proposes. Indeed, even in its fullest force, the Mandate cannot prevent vaccinated employees from spreading the virus in the workplace, or prevent unvaccinated employees from spreading the virus in between weekly tests.
If the deficiencies weâ€™ve already covered arenâ€™t enough, other miscellaneous considerations seal the Mandateâ€™s fate. For one, â€œ[t]he Agency cannot use its ETS powers as a stop-gap measure,â€ Asbestos Info., 727 F.2d at 422, but concedes that that is precisely what the Mandate is intended to do here. See 86 Fed. Reg. 61,402, 61,434â€“35 (admitting that â€œ[c]rafting a multi-layered standard that is comprehensive and feasible for all covered work settings, including mixed settings of vaccinated and unvaccinated workers, is an extraordinarily challenging and complicated undertaking, yet the grave danger that COVID-19 poses to unvaccinated workers obliges the agency to act as quickly as possibleâ€). For another, courts have consistently recognized that the â€œprotection afforded to workers [by an ETS] should outweigh the economic consequences to the regulated industry,â€ Asbestos Info., 727 F.2d at 423, but for all the reasons weâ€™ve previously noted, the Mandate flunks a cost-benefit analysis here.
It lastly bears noting that the Mandate raises serious constitutional concerns that either make it more likely that the petitioners will succeed on the merits, or at least counsel against adopting OSHAâ€™s broad reading of
Â§ 655(c) as a matter of statutory interpretation.
First, the Mandate likely exceeds the federal governmentâ€™s authority under the Commerce Clause because it regulates noneconomic inactivity that falls squarely within the Statesâ€™ police power. A personâ€™s choice to remain unvaccinated and forgo regular testing is noneconomic inactivity. Cf. NFIB
v. Sebelius, 567 U.S. 519, 522 (2012) (Roberts, C.J., concurring); see also id. at 652â€“53 (Scalia, J., dissenting). And to mandate that a person receive a vaccine or undergo testing falls squarely within the Statesâ€™ police power. Zucht v. King, 260 U.S. 174, 176 (1922) (noting that precedent had long â€œsettled that
it is within the police power of a state to provide for compulsory vaccinationâ€); Jacobson v. Massachusetts, 197 U.S. 11, 25â€“26 (1905) (similar). The Mandate, however, commandeers U.S. employers to compel millions of employees to receive a COVID-19 vaccine or bear the burden of weekly testing. 86 Fed. Reg. 61,402, 61,407, 61,437, 61,552. The Commerce Clause power may be expansive, but it does not grant Congress the power to regulate noneconomic inactivity traditionally within the Statesâ€™ police power. See Sebelius, 567 U.S. at 554 (Roberts, C.J., concurring) (â€œPeople, for reasons of their own, often fail to do things that would be good for them or good for society. Those failuresâ€”joined with the similar failures of othersâ€”can readily have a substantial effect on interstate commerce. Under the Governmentâ€™s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act.â€); see also Bond v. United States, 572 U.S. 844, 854 (2014) (â€œThe States have broad authority to enact legislation for the public goodâ€”what we have often called a Â³police power.' . . . The Federal Government, by contrast, has no such authority â€ (citations omitted)). Indeed, the courts â€œalways have rejected
readings of the Commerce Clause that would permit Congress to exercise
a police power.â€ United States v. Lopez, 514 U.S. 549, 584 (1995) (Thomas, J., concurring). In sum, the Mandate would far exceed current constitutional authority.
Second, concerns over separation of powers principles cast doubt over the Mandateâ€™s assertion of virtually unlimited power to control individual conduct under the guise of a workplace regulation. As Judge Duncan points out, the major questions doctrine confirms that the Mandate exceeds the bounds of OSHAâ€™s statutory authority. Congress must â€œspeak clearly if it wishes to assign to an agency decisions of vast economic and political significance.â€ Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014) (cleaned up). The Mandate derives its authority from an old statute employed in a
novel manner,20 imposes nearly $3 billion in compliance costs, involves broad medical considerations that lie outside of OSHAâ€™s core competencies, and purports to definitively resolve one of todayâ€™s most hotly debated political issues. Cf. MCI Telecomms. Corp. v. AT&T, 512 U.S. 218, 231 (1994) (declining to hold that the FCC could eliminate telecommunications rate- filing requirements); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159â€“60 (2000) (declining to hold that the FDA could regulate cigarettes); Gonzales v. Oregon, 546 U.S. 243, 262 (2006) (declining to allow DOJ to ban physician-assisted suicide). There is no clear expression of congressional intent in Â§ 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 OSHAâ€™s authorityâ€”no matter how thin patience wears.
At the very least, even if the statutory language were susceptible to OSHAâ€™s broad readingâ€”which it is notâ€”these serious constitutional concerns would counsel this courtâ€™s rejection of that reading. Jennings v. Rodriguez, 138 S. Ct. 830, 836 (2018).
* * *
Accordingly, the petitionersâ€™ challenges to the Mandate show a great likelihood of success on the merits, and this fact weighs critically in favor of a stay.
It is clear that a denial of the petitionersâ€™ proposed stay would do them irreparable harm. For one, the Mandate threatens to substantially burden the
20 Here, it is simply unlikely that Congress assigned authority over such a monumental policy decision to OSHAâ€”hard hats and safety goggles, this is not.
liberty interests21 of reluctant individual recipients put to a choice between their job(s) and their jab(s). For the individual petitioners, the loss of constitutional freedoms â€œfor even minimal periods of time . . . unquestionably constitutes irreparable injury.â€ Elrod v. Burns, 427
U.S. 347, 373 (1976) (â€œThe loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.â€).
Likewise, the companies seeking a stay in this case will also be irreparably harmed in the absence of a stay, whether by the business and financial effects of a lost or suspended employee, compliance and monitoring costs associated with the Mandate, the diversion of resources necessitated by the Mandate, or by OSHAâ€™s plan to impose stiff financial penalties on companies that refuse to punish or test unwilling employees. The Mandate places an immediate and irreversible imprint on all covered employers in America, and â€œcomplying with a regulation later held invalid almost always produces the irreparable harm of nonrecoverable compliance costs.â€ See Texas v. EPA, 829 F.3d 405, 433 (5th Cir. 2016) (quoting Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 220â€“21 (1994) (Scalia, J., concurring in part and in the judgment)).
The States, too, have an interest in seeing their constitutionally reserved police power over public health policy defended from federal overreach.
In contrast, a stay will do OSHA no harm whatsoever. Any interest OSHA may claim in enforcing an unlawful (and likely unconstitutional) ETS is illegitimate. Moreover, any abstract â€œharmâ€ a stay might cause the Agency
21 Not to mention the free religious exercise of certain employees. See U.S. CONST. amend. I; cf. Holt v. Hobbs, 574 U.S. 352, 361 (2015).
pales in comparison and importance to the harms the absence of a stay threatens to cause countless individuals and companies.
For similar reasons, a stay is firmly in the public interest. From economic uncertainty to workplace strife, the mere specter of the Mandate has contributed to untold economic upheaval in recent months. Of course, the principles at stake when it comes to the Mandate are not reducible to dollars and cents. The public interest is also served by maintaining our constitutional structure and maintaining the liberty of individuals to make intensely personal decisions according to their own convictionsâ€”even, or perhaps particularly, when those decisions frustrate government officials.
* * *
The Constitution vests a limited legislative power in Congress. For more than a century, Congress has routinely used this power to delegate policymaking specifics and technical details to executive agencies charged with effectuating policy principles Congress lays down. In the mine run of casesâ€”a transportation department regulating trucking on an interstate highway, or an aviation agency regulating an airplane lavatoryâ€”this is generally well and good. But health agencies do not make housing policy, and occupational safety administrations do not make health policy. Cf. Ala. Assâ€™n of Realtors, 141 S. Ct. at 2488â€“90. In seeking to do so here, OSHA runs afoul of the statute from which it draws its power and, likely, violates the constitutional structure that safeguards our collective liberty.
For these reasons, the petitionersâ€™ motion for a stay pending review is GRANTED. Enforcement of the Occupational Safety and Health Administrationâ€™s â€œCOVID-19 Vaccination and Testing; Emergency
Temporary Standardâ€22 remains STAYED pending adequate judicial review of the petitionersâ€™ underlying motions for a permanent injunction.23
In addition, IT IS FURTHER ORDERED that OSHA take no steps to implement or enforce the Mandate until further court order.
22 86 Fed. Reg. 61,402 (Nov. 5, 2021) (to be codified at 29 C.F.R. pts. 1910, 1915,
1917, 1918, 1926, and 1928).
23 The Clerk of Court shall ensure that this order applies with equal force to all related motions consolidated into this case in accordance with the courtâ€™s November 6, 2021 order.
STUART KYLE DUNCAN, Circuit Judge, concurring:
In addition to the many reasons ably identified by Judge Engelhardtâ€™s opinion, I underscore one reason why these challenges to OSHAâ€™s unprecedented mandate are virtually certain to succeed.
Courts â€œexpect Congress to speak clearly when authorizing an agency to exercise powers of Â³vast economic and political significance.'â€œ Ala. Assâ€™n of Realtors v. Depâ€™t of Health & Human Servs., 141 S. Ct. 2485, 2489 (2021) (quoting Utility Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014)). OSHAâ€™s rule reaches â€œtwo-thirds of all private-sector workers in the nation.â€86 Fed. Reg. 61,402, 61,403 (Nov. 5, 2021). It compels covered employers to (1) make employees get vaccinated or get weekly tests at their expense and wear masks; (2) â€œremoveâ€ non-complying employees; (3) pay per-violation fines; and (4) keep records of employee vaccination or testing status. 86 Fed. Reg. at 61,402â€“03, 61,551â€“54; 29 U.S.C. Â§ 666. OHSA invokes no statute expressly authorizing the rule. Instead, OSHA issued it under an emergency provision addressing workplace â€œsubstances,â€ â€œagents,â€ or â€œhazardsâ€ that it has used only ten times in the last 50 years and never to mandate vaccines. 86 Fed. Reg. at 61,403; see 29 U.S.C. Â§ 655(c)(1).
Whether Congress could enact such a sweeping mandate under its interstate commerce power would pose a hard question. See NFIB v. Sebelius, 567 U.S. 519, 549â€“61 (2012). Whether OSHA can do so does not.
I concur in granting a stay.