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5th Circuit Appeals Ct Halts Biden Employer Vaccine Mandate “Pending Further Action By This Court”

5th Circuit Appeals Ct Halts Biden Employer Vaccine Mandate “Pending Further Action By This Court”

“Because the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate, the Mandate is hereby STAYED pending further action by this court.”

The Biden administration has imposed a vaccine mandate on all companies with over 100 employees, originally due to start in December now pushed back to January.

The mandate was accomplished through an OSHA Emergency Temporary Standard, which arguably is beyond OSHA’s authority. Because the issue is an agency action, a group of plaintiffs invoked a federal appeals court rule that allows an application for a stay of agency action directly in the Court of Appeals.

You can read the Motion for a Stay and Motion for Expedited Consideration, filed on November 5, 2021, in the 5th Circuit Court of Appeals.

On November 5, 2021, Respondent Occupational Safety and Health Administration (“OSHA”) published an emergency temporary standard involving COVID-19 vaccination of private-sector employees, 29 C.F.R. § 1910.501 et seq. (2021) (the “ETS”). Due to the unique nature of emergency temporary standards, the ETS will take effect without any notice, public comment, or review. Section 6(c)(1) of the OSHA Act. Even under normal circumstances, an ETS is an extraordinary power that should be—and has been—judiciously exercised. But this particular ETS represents a unique and unprecedented assertion of federal authority: namely, the  power to coerce at least 80 million Americans to inject an irreversible vaccine into their bodies, under threat of losing their livelihoods and threat of fines and other penalties against Petitioners.

Petitioners Burnett Specialists, Choice Staffing, LLC, and Staff Force, Inc., (collectively, “Petitioners”) have requested that this Court review the ETS, pursuant to 29 U.S.C. 655(f), because it represents an unconstitutional delegation of authority from Congress to the executive branch, and therefore violates the non-delegation doctrine under Article I, Section 1 of the U.S. Constitution. Because the ETS, if it is allowed to take effect, will cause irreparable harm to Petitioners, Petitioners ask this Court to stay implementation of the ETS under Rule of Appellate Procedure 18. As shown below, in addition to suffering irreparable harm, Petitioners have a high likelihood of success on the merits, the federal government will not be harmed by the stay, and the public interest favors issuance of a stay by this Court.

The Court just issued an emergency stay pending an expedited briefing schedule:

Before Jones, Duncan, and Engelhardt, Circuit Judges.
Per Curiam:*

Before the court is the petitioners’1 emergency motion to stay enforcement of the Occupational Safety and Health Administration’s November 5, 2021 Emergency Temporary Standard2 (the “Mandate”) pending expedited judicial review.

Because the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate, the Mandate is hereby STAYED pending further action by this court.



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Emergency motion for an emergency standard. Sounds fitting.

    Ironclaw in reply to r2468. | November 6, 2021 at 6:26 pm

    Apparently, covid was only a routine emergency since it took two months to draft the emergency rule and then they delayed implementation of said emergency rule for another two months for convenience sake.

      AF_Chief_Master_Sgt in reply to Ironclaw. | November 7, 2021 at 9:34 am

      Let’s be honest. If this was an emergency, it would go into effect immediately.

      But the current tyrannical government knew that an immediate action would cause problems through the upcoming Thanksgiving through New Year holiday season (to include the fake African holiday Kwanza).

      Shuttering stores, bare Christmas trees, bare tables, no toilet paper and sundries is a bad optical.

      People being fired before the holidays is not a good optic.

    texasron in reply to r2468. | November 7, 2021 at 12:33 pm

    I wonder if now Biden will require that all unvaccinated people must wear a symbol to identify themselves. The Star of David comes to mind!

Is this the beginning of the end? Please, pretty please?

    peakcat76 in reply to amwick. | November 6, 2021 at 4:34 pm

    I hate to break it to you but this media induced hysteria will never end

      amwick in reply to peakcat76. | November 6, 2021 at 4:43 pm

      I just want to enjoy some magical thinking.. please indulge me for just a few minutes.

        UserP in reply to amwick. | November 7, 2021 at 9:58 am

        Okay. A new study from American Academy of Science reports that you can influence the outcome of specific events by doing something that has no bearing on the circumstances. A four year long study of democrat voters shows that magical thinking is useful in budgeting, controlling crime, electing presidents with dementia, defunding police and bringing in illegal aliens to make our country safer. Some participants were vaccinated but most reported that a shot of vodka worked equally well.

        Edward in reply to amwick. | November 9, 2021 at 7:12 pm

        Xiden’s Black Liar (replacing the red headed White Liar – temporarily?) announced the Resident wants companies to ignore the Fifth Circuit Court of Appeals and implement the mandate (which isn’t in effect yet, having just been published).

        It would be a strange hill to die on, but perhaps there won’t be a more clear cut Constitutional issue to fight the Courts on. This time the courts will have the people on their side if they stick with the Fifth Circuit decisions.

      The Friendly Grizzly in reply to peakcat76. | November 6, 2021 at 5:01 pm

      That reminds me, your cranberry still cause cancer?

      We’re at war. Don’t EVER forget that.

      Ironclaw in reply to peakcat76. | November 6, 2021 at 6:27 pm

      I’d be satisfied with an end to the fascist mandate for the moment.

So grateful for LI to be on this.

Does this only apply within the 5th Circuit? Or nationwide? I’m not a fan of one judge staying something country-wide, but I certainly like the outcome for this one.

Would like to hear a comment on how fast permanent injunction can be issued. I see that Brandon administration has until Monday 5pm to respond.

Living or dying by a judge ruling, take what you can get but it’s always waiting for the next shoe to drop.

grave statutory and constitutional issues

Such as the President in America is not a dictator or King.

And Congress cannot give the President and the bureaucracy it created unchecked open-ended dictatorial powers.

At, a minimum, any kind of mandate like this must at least go through Congress. And only then if we are faced with an clear and present existential danger.

Covid 19, a virus no more fatal than the seasonal flu for those under the age of 50, does not qualify as such an existential threat. Especially not after over 20 months of dealing with and living with it have passed.

Not to mention, the ‘vaccines’ are not really vaccines and the CDC changing the definition of vaccine on their web site a month or so ago doesn’t make it so.

Just as changing the definition of gain-of-function on a government website a month ago doesn’t let Dr. Frankenfauci off the hook for what he illegally did several years ago.

An “emergency” order that doesn’t go into effect for several months, for an imaginary emergency that wasn’t even an emergency when it first appeared more than a year ago.

Yeah, I don’t think so.

    With a timeline like that, Congress could have passed a law explicitly establishing a vaccine mandate, and it could have worked its way through the courts and been ruled on by SCOTUS in the time it took for Brandon to announce the order.

In any REASONABLE court, this insanity would never stand for a second.

Unfortunately, after the cowardice already displayed by Kavanaugh and Barrett on the previous vaccine issue before them, I have no faith that they are going to be reasonable.

There are two sides. A health emergency with externalities gives sanction to government action.

On the other side, such a power depends on facts being true, and the court isn’t the judge of science; and such powers can’t be so easy to invoke lacking facts.

So they’re sort of hamstrung and will come down however they come down. The problem being how to stop this action (which seems unjustified, but who’s to judge) without also stopping legitimate actions in the future.

    Edward in reply to rhhardin. | November 8, 2021 at 11:20 am

    The US Public Health Service* was founded in 1798. In all 223 years of that existence there has never been a necessity for such a mandate to be enforced through a dodge of making employers the enforcing entity because the administration knows it can’t force such a mandate on individuals, particularly so with a disease no more deadly than the annual influenza (and possibly less as the stats seem doctored – pun intended).

    * Now headed by an mentally ill man who believes he is a female

      Edward in reply to Edward. | November 8, 2021 at 11:22 am

      Pardon the run on sentence and that should be “a mentally ill man”.

      henrybowman in reply to Edward. | November 8, 2021 at 2:18 pm

      A cogent comment.
      It never before occurred to me that Biden’s USPHS is engaging in exactly the same legerdemain that it is excoriating the Texas legislature for exploiting on the abortion issue.

Here comes the fun part where the forces of tyranny are forced to answer some very basic questions about their Rona mandate if they want to implement this mandate.
Here are a few:
What is the efficacy of the vax?
What is the durability of that efficacy?
How much better is either, if at all, over naturally acquired immunity?
Is the working age population at risk overall or really just those with underlying medical problems who are working age?
Does the vax prevent transmission? If not does the proposed policy include mandatory testing for vaxed? If not please convince the CT this isn’t a punitive step.
What additional or elevated risks are present when a person with natural immunity takes the vax? Shouldn’t the CT view that as a disability accommodation? Why not?
What is the limiting principle for this ’emergency’? Is Covid now endemic v epidemic? If not what would be an endemic? Please explain why lower vax rate States currently have lower case rates and why higher vax rate States have higher case rates?

Have fun attempting to sling the same old song and dance, avoid the question, just trust us BS at the 5th Circuit. Somehow I get the feeling that they ain’t buying and the big con/bluf of mandatory vax won’t survive.

Can you imagine if Trump was president and tried to behave like the tough guy dictator Biden seems to think he is, with Princess Pelosi as Speaker and Schmucky as Senate majority leader?

He’d be dealing with a 4th impeachment by now.

The third branch doing their damn job?
(And that word means precisely what I think it means.)

Perhaps some litigant can get the issue of the Chevron Deference Doctrine raised in this series of cases. Some of the Supremes have been wanting to narrow that doctrine.

If companies decide “screw the mandate we’re mandating the vax or test on our own authority” what will the court do? Probably nothing since the executive branch claims there’s a covid exception to HIPAA and employment law.

    State governments have already done so.

    Companies can try, but they will find out who is essential and who is not. I know a lot of butts are just there to warm up the seats of otherwise cold chairs, but 20% of any work force actually does work and won’t be easy to replace.

    Also your average Walmart greeter won’t have any trouble finding work elsewhere, especially going into Christmas season.

Question: is the OSHA rule that has been stayed different than the Federal mandate to all Federal employees that takes effect next Tuesday? Because that sounded more like an internal decree, and the OSHA rule is more like an incorrectly applied change to all US employees.

I would love to see OSHA try to defend the 100 employee threshold for a SAFETY standard. So it’s unenforceable unsafe to be unvaccinated at a small business but it’s enforceable unsafe once you hit the 100 employee mark? Seems like an equal protection issue for the 100 vs 99 employee situations.

    docduracoat in reply to Andy. | November 9, 2021 at 10:36 am

    The 100 person threshold is not because of safety.
    They are claiming that this number includes all companies involved in interstate commerce.
    The Feds can only control interstate commerce.
    Anything smaller, (they claim) is only intrastate.

    n.n in reply to Andy. | November 7, 2021 at 2:44 pm

    More [American] conservative: Declaration, Constitution (less the Twilight Amendment and its evolving mischief), human and civil rights, oh my.

Remember when we had a Constitution?

What difference will the ruling make?

Corporations began implementing the “mandate” months before OSHA even penned the rule. Where the Brandon administration has looked to corporations to be their thugs to get things done, I don’t expect to see anything change. Unless employees sue any corporation still working to the “mandate” ….

    CommoChief in reply to MrE. | November 7, 2021 at 11:35 am

    What difference? Big one.

    Assuming that the Fed Govt is not successful in convincing the 5th Circuit on the merits of their arguments; broad v narrow ruling, then the impact will be broader than just the OSHA rule. So if they rule on the merits of a mandate from a broad ‘does this make sense’ v a more narrow ‘OSHA lacks statutory authority or the States not the Feds have police power/interest/historical authority’ basis then those arguments are finally exposed and fatally undermined.

    The broad arguments in favor of a mandate are the same no matter who is raising them and once undermined can’t be rehabilitated, IMO. The companies would then be on their own with no ‘the feds made us’ excuses. States could push the issue from an authority standpoint but they will hit the same roadblock on the merits; is Covid still an emergency/limiting principles for this emergency, 99+% survival rate, vax doesn’t stop transmission, natural immunity recognition, privacy of medical information and so on.

    Covid is now endemic not epidemic. The deference the CT were willing to extend to public health officials and State actions in March of 2020 was one thing. Many of the unanswered questions of the initial period have been answered. Vax and therapeutic treatments exist. We know who is and is not vulnerable to severe outcome. The deference was granted to allow public health and State govt latitude to address uncertainty that no longer exists. That being the case the latitude extended to the public health and State govt must be withdrawn. IMO.

Now do the Executive order mandating DOD contractors be vaccinated. Please.