United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals
Fifth Circuit

FILED
November 12, 2021
No. 21-60845 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,

Petitioners,

versus

Occupational Safety and Health Administration,

United States Department of Labor; United States
 No. 21-60845

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,

Respondents.

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)
“reasonably determined” in June 2020 that an emergency temporary
standard (ETS) was “not necessary” to “protect working people from
occupational exposure to infectious disease, including COVID-19.” 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 Int’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. Ass’n/N. Am. v. OSHA, 727
F.2d 415, 418 (5th Cir. 1984); Indus. Union Dep’t, AFL-CIO v. Bingham, 570 F.2d 965, 968
(D.C. Cir. 1977); Taylor Diving Salvage Co. v. U.S. Dep’t of Lab., 537 F.2d 819, 820–21 (5th

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simple: courts and the Agency have agreed for generations that
“[e]xtraordinary power is delivered to [OSHA] under the emergency
provisions of the Occupational Safety and Health Act,” so “[t]hat power
should be delicately exercised, and only in those emergency situations which
require it.” Fla. Peach Growers Ass’n v. U.S. Dep’t of Lab., 489 F.2d 120, 129–
30 (5th Cir. 1974).
This case concerns OSHA’s most recent ETS—the Agency’s
November 5, 2021 Emergency Temporary Standard (the “Mandate”)
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.
I.
OSHA promulgated its much anticipated 4 vaccine mandate on
November 5, 2021. Framed as an ETS, the Mandate requires all employers
of 100 or more employees to “develop, implement, and enforce a mandatory
COVID-19 vaccination policy” and require any workers who remain

Cir. 1976) (per curiam); Fla. Peach Growers Ass’n v. U.S. Dep’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 Administration’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.

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unvaccinated to “undergo [weekly] COVID-19 testing and wear a face

covering at work in lieu of vaccination.” 86 Fed. Reg. 61,402, 61,402.
On the afternoon of the Mandate’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 “cause to believe there
are grave statutory and constitutional issues with the Mandate,” we
intervened and imposed a temporary stay on OSHA’s enforcement of the
Mandate. For ease of judicial review, and in light of the pressing need to act
immediately, we consolidated our court’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 standing 6 to sue is obvious—
the Mandate imposes a financial burden upon them by deputizing their
participation in OSHA’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
OSHA’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
“Only one of the petitioners needs to have standing to permit us to consider the
petition for review.” Massachusetts v. EPA, 549 U.S. 497, 518 (2007).

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 No. 21-60845

The petitioners seek a stay—and ultimately a permanent injunction—

of the Mandate’s enforcement pending full judicial review of the Mandate.
We address their request for a stay today. 7
II.
The “traditional stay factors . . . govern a request for a stay pending
judicial review.” Nken v. Holder, 556 U.S. 418, 426 (2009). Under the
traditional stay standard, a court considers four factors: “(1) whether the stay
applicant has made a strong showing that he is likely to succeed on the merits;
(2) whether the applicant will be irreparably injured absent a stay; (3)
whether issuance of the stay will substantially injure the other parties
interested in the proceeding; and (4) where the public interest lies.” Hilton
v. Braunskill, 481 U.S. 770, 776 (1987).
Each of these factors favors a stay here.
A.
We first consider whether the petitioners’ 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 adversary’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 “the United States court of appeals for the circuit wherein”
“[a]ny person who may be adversely affected by” an ETS “resides or has his principal
place of business.” See 29 U.S.C. § 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.

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We begin by stating the obvious. The Occupational Safety and Health

Act, which created OSHA, was enacted by Congress to assure Americans
“safe and healthful working conditions and to preserve our human
resources.” See 29 U.S.C. § 651 (statement of findings and declaration of
purpose and policy). It was not—and likely could not be, under the
Commerce Clause and nondelegation doctrine 8—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. Ass’n
of Realtors v. HHS, 141 S. Ct. 2485, 2488–90 (2021) (per curiam).
On the dubious assumption that the Mandate does pass constitutional
muster—which we need not decide today 9—it is nonetheless fatally flawed
on its own terms. Indeed, the Mandate’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 “grave danger” in the workplace, while making no
attempt to shield employees with 98 or fewer coworkers from the very same

8
The nondelegation doctrine constrains Congress’s ability to delegate its
legislative authority to executive agencies. See, e.g., Mistretta v. United States, 488 U.S. 361,
371–72 (1989) (“The Constitution provides that ‘[a]ll legislative Powers herein granted
shall be vested in a Congress of the United States’ . . . and we have long insisted that ‘the
integrity and maintenance of the system of government ordered by the Constitution’
mandate that Congress generally cannot delegate its legislative power to another Branch.”
(first quoting U.S. Const. art. I, § 1; then quoting Field v. Clark, 143 U.S. 649, 692
(1892))).
9
But see infra subsection II.A.2.f.

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threat). The Mandate’s stated impetus—a purported “emergency” that the

entire globe has now endured for nearly two years, 10 and which OSHA itself
spent nearly two months responding to 11—is unavailing as well. And its
promulgation grossly exceeds OSHA’s statutory authority.
1.
After the President voiced his displeasure with the country’s
vaccination rate in September, 12 the Administration pored over the U.S.
Code in search of authority, or a “work-around,” 13 for imposing a national

10
As Justice Gorsuch recently observed, society’s interest in slowing the spread of
COVID-19 “cannot qualify as [compelling] forever,” for “[i]f human nature and history
teach anything, it is that civil liberties face grave risks when governments proclaim
indefinite states of emergency.” Does 1–3 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 “last several years . . . fail[ed] to qualify for [OSHA] emergency
measures”).
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
(“‘We’ve been patient, but our patience is wearing thin, and your refusal has cost all of us,’
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 . . . .”). 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 “emergency”
could prompt such a “deliberate” response. In similar cases, we’ve held that OSHA’s
failure to act promptly “does not conclusively establish that a situation is not an
emergency,” but “may be evidence that a situation is not a true emergency.” 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 Ruhle’s tweet that stated, “OSHA doing this vaxx mandate as an
emergency workplace safety rule is the ultimate work-around for the Federal govt to require
vaccinations.” See, e.g., Pet’rs Burnett Specialists, Choice Staffing, LLC, and Staff Force
Inc.’s Reply Brief at 4 (emphasis added).

7
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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 “for an emergency temporary
standard to take immediate effect upon publication in the Federal Register”
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).
As the name suggests, emergency temporary standards “are an
‘unusual response’ to ‘exceptional circumstances.’” Int’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
OSHA’s authority to establish emergency temporary standards under
§ 655(c) “is an ‘extraordinary power’ that is to be ‘delicately exercised’ in
only certain ‘limited situations.’” Id. at 370 (quoting Pub. Citizen, 702 F.2d
at 1155). 14
But the Mandate at issue here is anything but a “delicate[] exercise[]”
of this “extraordinary power.” 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 workers’ varying degrees of susceptibility to the supposedly “grave
danger” the Mandate purports to address.

14
The Agency has thus conceded in the past that “[t]he OSH Act does not
authorize OSHA to issue sweeping health standards to address entire classes of known and
unknown infectious diseases on an emergency basis without notice and comment.” See
Department of Labor’s Resp. to the Emergency Pet. for a Writ of Mandamus at 33–34, In
re AFL-CIO, No. 20-1158 (D.C. Cir. May 29, 2020) [hereinafter OSHA D.C. Circuit Brief].

8
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2.
Thus, as § 655(c)(1) plainly provides, to be lawfully enacted, an ETS
must: (1) address “substances or agents determined to be toxic or physically
harmful”—or “new hazards”—in the workplace; (2) show that workers are
exposed to such “substances,” “agents,” or “new hazards” in the
workplace; (3) show that said exposure places workers in “grave danger”;
and (4) be “necessary” to alleviate employees’ 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 OSHA’s ETS authority “requires
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 necessary”). 15
(a)
In its brief, Texas makes a compelling argument that § 655(c)(1)’s
neighboring phrases “substances or agents” and “toxic or physically
harmful” place an airborne virus beyond the purview of an OSHA ETS in the
first place. To avoid “giving unintended breadth to the Acts of Congress,”
courts “rely on the principle of noscitur a sociis—a word is known by the
company it keeps.” Yates v. United States, 574 U.S. 528, 543 (2015) (cleaned
up). Here, OSHA’s attempt to shoehorn an airborne virus that is both widely
present in society (and thus not particular to any workplace) and non-life-

15
In prior litigation, OSHA acknowledged that many “workplaces” covered by a
COVID-19 ETS “are not merely workplaces,” but are also “stores, restaurants, and other
places occupied by workers and the general public alike, in which the measures called for
require a broader lens—and at times a broader mandate—than available to OSHA.” See
OSHA D.C. Circuit Brief at 20.

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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 Dep’t, AFL-CIO v. Am.
Petroleum Inst., 448 U.S. 607 (1980). Any argument OSHA may make that
COVID-19 is a “new hazard[]” would directly contradict OSHA’s prior
representation to the D.C. Circuit that “[t]here can be no dispute that
COVID-19 is a recognized hazard.” See OSHA D.C. Circuit Brief at 25
(emphasis added).
(b)
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 issue—here, COVID-19. See, e.g., Int’l Chem. Workers, 830 F.2d
at 371 (noting OSHA’s stated view “that a finding of ‘grave danger’ to
support an ETS be based upon exposure in actual levels found in the
workplace”). 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 “describ[ing] myriad studies showing workplace [COVID-19] ‘clusters’
and ‘outbreaks’ and other significant ‘evidence of workplace transmission’
and ‘exposure.’” See Resp’ts’ Opp’n to Emergency Stay Mot. at 8. But this
misses the mark, as OSHA is required to make findings of exposure—or at
least the presence of COVID-19—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 “outbreaks.” As

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discussed below, this kind of overbreadth plagues the Mandate generally. See
infra subsection II.A.2.d.
(c)
Equally problematic, however, is that it remains unclear that COVID-
19—however tragic and devastating the pandemic has been—poses the kind
of grave danger § 655(c)(1) contemplates. See, e.g., Int’l Chem. Workers, 830
F.2d at 371 (noting that OSHA itself once concluded “that to be a ‘grave
danger,’ it is not sufficient that a chemical, such as cadmium, can cause cancer
or kidney damage at a high level of exposure” (emphasis added)). For starters,
the Mandate itself concedes that the effects of COVID-19 may range from
“mild” to “critical.” 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 percent 16 of Americans aged 12 and older either fully or partially
inoculated against it, the virus poses—the Administration assures us—little
risk at all.) See, e.g., 86 Fed. Reg. 61,402, 61,402–03 (“COVID-19 vaccines
authorized or approved by the [FDA] effectively protect vaccinated
individuals against severe illness and death from COVID-19.”).
The Administration’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-
tracker/#datatracker-home.

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critical to note that the Mandate makes no serious attempt to explain why
OSHA and the President himself 17 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) (“Health 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.”); Letter from Loren Sweatt, Principal Deputy Assistant Sec’y,
OSHA, to Richard L. Trumka, President, AFL-CIO at 3 (May 29, 2020)
[hereinafter Sweatt Letter] (acknowledging as a general matter that it “would
not be necessary for OSHA to issue an ETS to protect workers from
infectious diseases” because “OSHA lacks evidence to conclude that all
infectious diseases to which employees may be exposed at a workplace
constitute a ‘grave danger’ for which an ETS is an appropriate remedy”).
Because it is generally “arbitrary or capricious” to “depart from a prior
policy sub silentio,” agencies must typically provide a “detailed explanation”
for contradicting a prior policy, particularly when the “prior policy has
engendered serious reliance interests.” FCC v. Fox, 556 U.S. at 515. OSHA’s
reversal here strains credulity, as does its pretextual basis.18 Such
shortcomings are all hallmarks of unlawful agency actions.
To be sure, “OSHA’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,” but this is not a case

17
In December of 2020, the President was quoted as saying, “No I don’t think
[vaccines] should be mandatory.” See, e.g., Jacob Jarvis, Fact Check: Did Joe Biden Reject
Idea of Mandatory Vaccines in December 2020, Newsweek (Sept. 10, 2021),
https://www.newsweek.com/fact-check-joe-biden-no-vaccines-mandatory-december-
2020-1627774.
18
See supra note 13 (Klain endorsement of the term “work-around”).

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where any amount of deference would make a bit of difference. Int’l Chem.
Workers, 830 F.2d at 371.
(d)
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 remains—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 (“Based 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. OSHA’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

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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-
CIO’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.”). OSHA itself admitted that “an
ETS once issued could very well become ineffective or counterproductive, as
it may be informed by incomplete or ultimately inaccurate information.” Id.
at 30, 32–33 (acknowledging further that “[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-19—effectively all workers across the country—would
have to be written at such a general level that it would risk providing very
little assistance at all”).
In light of this immense complexity, one might naturally ask the
Agency—is this situation truly amenable to a one-size-fits-all Mandate? The
likely answer may be why OSHA has in the past “determined 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,” which is generally “more effective

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than promulgating a rigid set of requirements for all employers in all

industries based on limited information.” See Sweatt Letter at 2. In sum, as
OSHA itself has previously acknowledged, an ETS appears to be a “poorly-
suited approach for protecting workers against [COVID-19] because no
standard that covers all of the Nation’s workers would protect all those
workers equally.” 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
(“OSHA seeks information about the ability of employers with fewer than
100 employees to implement COVID-19 vaccination and/or testing
programs.”). 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 government’s interest in enacting
a liberty-restraining pronouncement is not in fact “compelling.” Cf. Church
of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 542–46 (1993)
(city’s ban on religious animal sacrifice but corresponding allowance of other
activities similarly endangering public health belied its purportedly
“compelling” interest in safe animal disposal practices). The underinclusive
nature of the Mandate implies that the Mandate’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.

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(e)
If the deficiencies we’ve already covered aren’t enough, other
miscellaneous considerations seal the Mandate’s fate. For one, “[t]he
Agency cannot use its ETS powers as a stop-gap measure,” 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, 61,434–35 (admitting that “[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 possible”). For another, courts have consistently
recognized that the “protection afforded to workers [by an ETS] should
outweigh the economic consequences to the regulated industry,” Asbestos
Info., 727 F.2d at 423, but for all the reasons we’ve previously noted, the
Mandate flunks a cost-benefit analysis here.
(f)
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 OSHA’s broad reading of
§ 655(c) as a matter of statutory interpretation.
First, the Mandate likely exceeds the federal government’s authority
under the Commerce Clause because it regulates noneconomic inactivity that
falls squarely within the States’ police power. A person’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
652–53 (Scalia, J., dissenting). And to mandate that a person receive a vaccine
or undergo testing falls squarely within the States’ police power. Zucht v.
King, 260 U.S. 174, 176 (1922) (noting that precedent had long “settled that

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it is within the police power of a state to provide for compulsory

vaccination”); Jacobson v. Massachusetts, 197 U.S. 11, 25–26 (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 States’ police power. See
Sebelius, 567 U.S. at 554 (Roberts, C.J., concurring) (“People, for reasons of
their own, often fail to do things that would be good for them or good for
society. Those failures—joined with the similar failures of others—can
readily have a substantial effect on interstate commerce. Under the
Government’s logic, that authorizes Congress to use its commerce power to
compel citizens to act as the Government would have them act.”); see also
Bond v. United States, 572 U.S. 844, 854 (2014) (“The States have broad
authority to enact legislation for the public good—what we have often called
a ‘police power.’ . . . The Federal Government, by contrast, has no such
authority. . . .” (citations omitted)). Indeed, the courts “always have rejected
readings of the Commerce Clause . . . that would permit Congress to exercise
a police power.” 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 Mandate’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 OSHA’s statutory authority. Congress must “speak clearly if it
wishes to assign to an agency decisions of vast economic and political
significance.” 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

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novel manner, 20 imposes nearly $3 billion in compliance costs, involves broad

medical considerations that lie outside of OSHA’s core competencies, and
purports to definitively resolve one of today’s most hotly debated political
issues. 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, 159–60 (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 § 655(c) to convey OSHA such broad authority, and
this court will not infer one. Nor can the Article II executive breathe new
power into OSHA’s authority—no matter how thin patience wears.
At the very least, even if the statutory language were susceptible to
OSHA’s broad reading—which it is not—these serious constitutional
concerns would counsel this court’s rejection of that reading. Jennings v.
Rodriguez, 138 S. Ct. 830, 836 (2018).
* * *
Accordingly, the petitioners’ challenges to the Mandate show a great
likelihood of success on the merits, and this fact weighs critically in favor of
a stay.
B.
It is clear that a denial of the petitioners’ 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 OSHA—hard hats and safety goggles, this is not.

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liberty interests 21 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 “for even minimal periods of
time . . . unquestionably constitutes irreparable injury.” Elrod v. Burns, 427
U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes irreparable injury.”).
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 OSHA’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 “complying with a regulation later held invalid almost always
produces the irreparable harm of nonrecoverable compliance costs.” See
Texas v. EPA, 829 F.3d 405, 433 (5th Cir. 2016) (quoting Thunder Basin Coal
Co. v. Reich, 510 U.S. 200, 220–21 (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.
C.
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 “harm” 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).

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pales in comparison and importance to the harms the absence of a stay

threatens to cause countless individuals and companies.
D.
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 convictions—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
cases—a transportation department regulating trucking on an interstate
highway, or an aviation agency regulating an airplane lavatory—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. Ass’n
of Realtors, 141 S. Ct. at 2488–90. 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 petitioners’ motion for a stay pending review is
GRANTED. Enforcement of the Occupational Safety and Health
Administration’s “COVID-19 Vaccination and Testing; Emergency

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Temporary Standard” 22 remains STAYED pending adequate judicial review

of the petitioners’ 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 court’s November 6,
2021 order.

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Stuart Kyle Duncan, Circuit Judge, concurring:

In addition to the many reasons ably identified by Judge Engelhardt’s
opinion, I underscore one reason why these challenges to OSHA’s
unprecedented mandate are virtually certain to succeed.
Courts “expect Congress to speak clearly when authorizing an agency
to exercise powers of ‘vast economic and political significance.’” Ala. Ass’n
of Realtors v. Dep’t of Health & Human Servs., 141 S. Ct. 2485, 2489 (2021)
(quoting Utility Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014)). OSHA’s
rule reaches “two-thirds of all private-sector workers in the nation.”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) “remove” non-complying employees; (3) pay per-violation fines;
and (4) keep records of employee vaccination or testing status. 86 Fed. Reg.
at 61,402–03, 61,551–54; 29 U.S.C. § 666. OSHA invokes no statute
expressly authorizing the rule. Instead, OSHA issued it under an emergency
provision addressing workplace “substances,” “agents,” or “hazards” 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. § 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, 549–61 (2012). Whether OSHA can do so does not.
I concur in granting a stay.

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