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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