Court filing
Petition for Review — BST Holdings v. OSHA
Filed November 5, 2021 in BST Holdings, L.L.C. v. Occupational Safety and Health Administration; one of 2 filings from this case.
Record facts
| Court | U.S. Court of Appeals for the Fifth Circuit |
|---|---|
| Filed | 2021-11-05 |
U.S. Court of Appeals for the Fifth Circuit · No. 21-60845 · Doc. 1-1 · 2021-11-05 · Docket on CourtListener
Full text
1 No. 21-_____________ __________________________________________________________________ UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT __________________________________________________________________ BST Holdings, LLC; RV Trosclair L.L.C.; Trosclair Airline LLC; Trosclair Almonaster LLC; Trosclair and Sons LLC; Trosclair & Trosclair, Inc.; Trosclair Carrollton LLC; Trosclair Claiborne LLC; Trosclair Donaldsonville, LLC; Trosclair Houma LLC; Trosclair Judge Perez LLC; Trosclair Lake Forest LLC; Trosclair Morrison LLC; Trosclair Paris LLC; Trosclair Terry LLC; Trosclair Williams LLC; Ryan Dailey; Jasand Gamble; Christopher L. Jones; David John Loschen; Samuel Albert Reyna; and Kip Stovall, Petitioners, v. Occupational Safety and Health Administration, United States Department of Labor, Respondent. __________________________________________________________________ PETITION FOR REVIEW __________________________________________________________________ Daniel R. Suhr Sarah Harbison Jeffrey D. Jennings Pelican Institute for Public Policy Liberty Justice Center 400 Poydras St., Suite 900 141 W. Jackson Blvd., Ste. 1065 New Orleans, LA 70130 Chicago, IL 60604 Telephone: 504-952-8016 Telephone: 312-637-2280 sarah@pelicaninstitute.org dsuhr@libertyjusticecenter.org jjennings@libertyjusticecenter.org Attorneys for Petitioners Case: 21-60845 Document: 1-1 Page: 1 Date Filed: 11/05/2021 2 CERTIFICATE OF INTERESTED PERSONS 1. Pursuant to Fifth Circuit Rule 28.2.1, Petitioners file this Certificate of Interested Persons. The case number has yet to be assigned in this case, and the complete case caption of parties is on the preceding cover page. 2. The undersigned counsel of record certifies that the following listed persons and non-governmental entities have an interest in the outcome of this case. These representations are made in order that the judges of this Court may evaluate possible disqualification or recusal. a. BST Holdings, LLC b. RV Trosclair L.L.C. c. Trosclair Airline LLC d. Trosclair Almonaster LLC e. Trosclair and Sons LLC f. Trosclair & Trosclair, Inc. g. Trosclair Carrollton LLC h. Trosclair Claiborne LLC i. Trosclair Donaldsonville, LLC j. Trosclair Houma LLC Case: 21-60845 Document: 1-1 Page: 2 Date Filed: 11/05/2021 3 k. Trosclair Judge Perez LLC l. Trosclair Lake Forest LLC m. Trosclair Morrison LLC n. Trosclair Paris LLC o. Trosclair Terry LLC p. Trosclair Williams LLC q. Ryan Dailey r. Jasand Gamble s. Christopher L. Jones t. David John Loschen u. Samuel Albert Reyna v. Kip Stovall 3. Opposing counsel in this case will be the United States Department of Justice. /s/ Jeffrey D. Jennings Attorney of record for Petitioners Case: 21-60845 Document: 1-1 Page: 3 Date Filed: 11/05/2021 4 PETITION FOR REVIEW Pursuant to § 6(f) of the Occupational Safety and Health Act, 28 U.S.C. § 655(f), and Federal Rule of Appellate Procedure 15, the Petitioners, BST Holdings, LLC; RV Trosclair L.L.C.; Trosclair Airline LLC; Trosclair Almonaster LLC; Trosclair and Sons LLC; Trosclair & Trosclair, Inc.; Trosclair Carrollton LLC; Trosclair Claiborne LLC; Trosclair Donaldsonville, LLC; Trosclair Houma LLC; Trosclair Judge Perez LLC; Trosclair Lake Forest LLC; Trosclair Morrison LLC; Trosclair Paris LLC; Trosclair Terry LLC; Trosclair Williams LLC; Ryan Dailey; Jasand Gamble; Christopher L. Jones; David John Loschen; Samuel Albert Reyna; and Kip Stovall (“Petitioners”), petition the Court for review of the Emergency Temporary Standard addressing occupational exposure to COVID-19, issued by the Respondent, Occupational Safety and Health Administration, United States Department of Labor (“OSHA” or “Respondent”), and published in the Federal Register on November 5, 2021, at Volume 86, pages 61402 through 61555 (the “ETS”). A copy of the ETS is attached to this Petition as Exhibit A. The ETS requires all employers with more than 100 employees to mandate that their workers be fully vaccinated against COVID-19—or to Case: 21-60845 Document: 1-1 Page: 4 Date Filed: 11/05/2021 5 subject unvaccinated workers to weekly COVID-19 testing and masking at work. Petitioners petition for review of this ETS mandate on the grounds that 1) it exceeds OSHA’s authority under its enabling statute, 2) it exceeds Congress’s authority under the Interstate Commerce Clause, and 3) it exceeds Congress’s authority under the nondelegation doctrine. The sixteen corporate entity petitioners are a management company and fifteen locally owned supermarkets that conduct business under the names Ralph’s Market, Butcher Boy, and Save A Lot. The earliest market has been in continuous operation in Louisiana since 1984. They share common ownership and common management, as Brandon Trosclair is the single member-manager of the limited liability companies and the president of the incorporated entity. They are all incorporated in Louisiana and maintain their principal place of business in Louisiana. Combined, they employ almost 500 workers and are currently subject to OSHA regulations. They will be adversely affected by the ETS because they already face worker shortages, and the ETS would make it even harder to hire and keep employees. The ETS would diminish their ability to provide grocery options to the citizens of Case: 21-60845 Document: 1-1 Page: 5 Date Filed: 11/05/2021 6 Louisiana. The six individually named petitioners are residents of Texas and employees of CaptiveAire Systems, Inc., a corporation with approximately 1,500 employees. They will be adversely affected by the ETS because it will force them, against their will, to show their employer proof of COVID-19 vaccination or risk losing their jobs and livelihoods if they choose not to. Alternatively, they would be subjected to weekly COVID-19 testing and masking at work. This adverse effect is particularly troubling, unfair, and illegal as it applies to Petitioners Dailey, Gamble, Jones, and Reyna because they work mostly alone on roofs and are highly unlikely to spread COVID-19 to colleagues they may only see a few times a year. They only come into contact with customers briefly at customer workplaces. Therefore, OSHA’s claimed authority over their private lives and vaccine status is an egregious government overreach. For these reasons, Petitioners petition this Court to review the ETS immediately, and they plan to file today an Emergency Motion to Stay Enforcement & Expedite Review and their Opening Brief. Case: 21-60845 Document: 1-1 Page: 6 Date Filed: 11/05/2021 7 November 5, 2021 Respectfully submitted, /s/ Jeffrey D. Jennings Daniel R. Suhr, WI Bar # 1056658 Application for Admission Submitted Jeffrey D. Jennings, VA Bar # 87667 Liberty Justice Center 141 W. Jackson Blvd., Ste. 1065 Chicago, IL 60604 Telephone: 312-637-2280 dsuhr@libertyjusticecenter.org jjennings@libertyjusticecenter.org Sarah Harbison, LA Bar # 31948 Pelican Institute for Public Policy 400 Poydras St., Suite 900 New Orleans, LA 70130 Telephone: 504-952-8016 sarah@pelicaninstitute.org Attorneys for Petitioners Case: 21-60845 Document: 1-1 Page: 7 Date Filed: 11/05/2021 8 CERTIFICATE OF SERVICE I hereby certify that on November 5, 2021, I caused a copy of this Petition for Review to be served on Respondent by email as directed in the ETS: Edmund C. Baird Associate Solicitor of Labor for Occupational Safety and Health Office of the Solicitor United States Department of Labor 200 Constitution Ave., NW Washington, DC 20210 zzSOLCovid19-ETS@dol.gov /s/ Jeffrey D. Jennings Case: 21-60845 Document: 1-1 Page: 8 Date Filed: 11/05/2021
File and source
- File
- gov.uscourts.ca5.205138.1.1.pdf
- Size
- 108,493 bytes
- SHA-256
- bd7ec75c0601d41a75663afba5687c1ef8bd5ae296cf072cbf3eb48711c4dbaf
- Our copy
- gov.uscourts.ca5.205138.1.1.pdf
- Original
- archive.org