21A244 052 Dec 30 2021 Main Document 20211230114342444 In Re Mcp No. 165 (U.S.)

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Nos. 21A243, 21A244, 21A245, 21A246, 21A247, 21A248, 21A249, 21A250, 21A251,  
21A252, 21A258, 21A259, 21A260, and 21A267 
 
_________________________ 
In the 
Supreme Court of the United States 
 
_________________________ 
 
IN RE: MCP NO. 165, OCCUPATIONAL SAFETY AND HEALTH 
ADMINISTRATION, INTERIM FINAL RULE: COVID-19 VACCINATION AND 
TESTING; EMERGENCY TEMPORARY STANDARD 86 FED. REG. 61402, 
ISSUED ON NOVEMBER 4, 2021 
 
_________________________ 
 
ON APPLICATION FOR STAY OF ADMINISTRATIVE ACTION AND 
PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE SIXTH CIRCUIT  
 
_________________________ 
 
 
MOTION OF ADVANCING AMERICAN FREEDOM FOR LEAVE TO  
FILE ATTACHED AMICUS BRIEF IN SUPPORT OF APPLICATIONS FOR  
STAY OR INJUNCTION PENDING REVIEW; FOR LEAVE TO FILE 
WITHOUT 10-DAYS NOTICE; TO FILE IN UNBOUND FORMAT 
ON 8 ½-BY-11-INCH PAPER 
 
_____________________
 
 
Matthew J. Sheehan 
  Counsel of Record 
Advancing American Freedom, Inc. 
801 Pennsylvania Avenue, N.W.  
Washington, D.C. 20004 
(202) 780-4848  
matt@advancingamericanfreedom.com 

 
 
i 
MOTION FOR LEAVE TO FILE AN AMICUS BRIEF 
Advancing American Freedom (AAF) respectfully moves for leave (1) to file the 
attached brief as amicus curie in support to the Emergency Applications for 
Administrative Stays and Stays of Administrative Action, and Alternative Petitions 
for Writ of Certiorari Before Judgement, filed December 17-22, 2021, (2) to file 
without providing 10 days’ advance notice to the parties of AAF’s intent to file; and 
(3) to file in unbound format on 8 ½-by-11-inch paper rather than in booklet form.   
On December 27, 2021, AAF sought consent via email from counsel of record 
for the parties to file an amicus curiae brief in support of the emergency applications.  
Counsel of record for the Applicants in eleven of the fourteen applications – Nos. 
21A243, 21A244, 21A246, 21A247, 21A248, 21A250, 21A251, 21A252, 21A258, 
21A260, and 21A267 – stated their consent to or did not oppose the filing.  Counsel 
for the remaining applications had not responded by December 30, 2021 at 9 AM.  
The United States Department of Justice took no position. 
AAF is a nonprofit organization that promotes traditional American values and 
defends policies that preserve liberty and protect American freedom against 
encroachment by the federal government and the administrative state.  AAF files 
amicus briefs in federal courts that support these principles.   
AAF seeks permission to file the attached amicus brief explaining that the 
Occupational Safety and Health Administration’s (OSHA) recently published 
Emergency Temporary Standard (ETS), issued November 4, 2021, conflicts with 
AAF’s core understandings concerning the proper interpretation of Executive Agency 
authority and Congressionally delegated authority under the United States 

 
ii 
Constitution.  Through the separation of powers, the Framers of our Constitution 
placed boundaries and limitations on the ability of the Executive Branch unilaterally 
to impose mandates on American citizens, and to erect barriers to work, that are far 
outside the contemplation or authorization of the peoples’ elected representatives in 
Congress.  OSHA’s ETS entirely ignores those limitations.  This Court must act now 
to prevent the irreparable harm to Americans, to jobs, and to constitutional 
governance that will be done if OSHA’s mandate is permitted to take effect. 
AAF believes the attached brief will be useful to the Court in considering the 
emergency applications by offering important historical perspective on the limited 
scope of the emergency authorities that Congress has delegated to OSHA.  The brief 
analyzes the nine ETSs that OSHA promulgated prior to 2021.  All nine sought to 
regulate workplace-specific hazards.  The brief explains that of the nine ETSs, six 
were challenged in court as an improper application of OSHA’s limited emergency 
authority.  All but one of the challenged ETSs were either fully or partially vacated 
or stayed.  This history critically illustrates that the courts have historically played 
a robust role in ensuring that OSHA’s exercise of emergency authorities is strictly 
limited to the terms of Congress’s express delegation. 
For the foregoing reasons, AAF respectfully requests that the Court grant its 
motion to file the attached amicus brief.  AAF requests leave to file in unbound format 
on 8 ½-by-11-inch paper rather than in the booklet form, and, if necessary, to file a 
brief without providing 10 days’ advance notice to the parties of its intent to file this 
brief.  The expedited briefing ordered by the Court renders such notice impossible. 

 
iii 
 
 
Respectfully submitted, 
 Matthew J. Sheehan 
   Counsel of Record 
Advancing American Freedom, Inc. 
801 Pennsylvania Avenue, N.W.  
Washington, D.C. 20004 
(202) 780-4848  
matt@advancingamericanfreedom.com 
 
 

 
iv 
TABLE OF CONTENTS 
 
 
 
 
 
 
 
   Page 
 
MOTION FOR LEAVE TO FILE AN AMICUS BRIEF ................................................. i 
 
TABLE OF AUTHORITIES ........................................................................................... v 
 
STATEMENT OF INTEREST OF AMICI CURIAE ..................................................... 1 
 
SUMMARY OF THE ARGUMENT ............................................................................... 1 
 
ARGUMENT .................................................................................................................. 2 
 
I. 
Historical Disposition of OSHA ETSs ................................................................ 4 
 
II. 
Common Characteristics of Past OSHA ETSs ................................................... 9 
 
CONCLUSION ............................................................................................................. 11 
 
 
 
 
 
 
 
 

 
v 
TABLE OF AUTHORITIES 
Am. Petrol. Inst. v. OSHA,  
 581 F.2d 493 (5th Cir. 1978) ...................................................................................... 8 
 
Asbestos Info. Ass’n v. OSHA, 
 727 F.2d 415 (5th Cir. 1984) .............................................................................. 3, 4, 9 
 
BST Holdings, L.L.C. v. OSHA,  
 No. 21-60845 n.13 (5th Cir. Nov. 12, 2021) ............................................................. 11 
 
Dry Color Mfrs. Ass’n Inc. v. Dep. of Labor, 
 486 F.2d 98 (3d Cir. 1973).......................................................................................... 6 
 
Fla. Peach Grow. Ass’n v. U.S. Dept. of Labor, 
 489 F.2d 120 (5th Cir. 1974) .......................................................................... 2, 3, 4, 6 
 
Indus. U. Dept., AFL-CIO v. Bingham,  
 570 F.2d 965 (D.C. Cir. 1977) .................................................................................... 8 
 
Indus. Union Dept. v. Amer. Petroleum Inst.,  
 448 U.S. 607 (1980) .................................................................................................. 10 
 
In re: MCP No. 165, Occupational Safety & Health Admin. Interim Final Rule: 
COVID-19 Vaccination and Testing; Emergency Temporary Standard 86 Fed. 
Reg. 61402 ................................................................................................................ 10 
 
Taylor Diving Salvage v. U.S. Dept. of Labor,  
 537 F.2d 819 (5th Cir. 1976) ...................................................................................... 8 
 
Vistron v. OSHA,  
 6 OSHC 1483 (6th Cir. 1978) ..................................................................................... 9 
 
STATUTES 
 
29 U.S.C. § 655(a) .......................................................................................................... 4 
 
29 U.S.C. § 655(a)-(b) ..................................................................................................... 2 
 
29 U.S.C. § 655(c)(1) ...................................................................................................... 2 
 
29 U.S.C. § 655(c)(2)-(3) ................................................................................................. 3 
 
29 U.S.C. § 651(b) .......................................................................................................... 2 
 

 
vi 
REGULATIONS  
 
36 Fed. Reg. 23,207 (December 7, 1971) ....................................................................... 4 
 
38 Fed. Reg. 10,715 (May 1, 1973), amended by 38 Fed. Reg. 17,214  
 (June 29, 1973) ........................................................................................................... 5 
 
38 Fed. Reg. 10,929 (May 3, 1973) ................................................................................ 6 
 
38 Fed. Reg. 17,214 (June 29, 1973) ............................................................................. 5 
 
39 Fed. Reg. 12,342 (April 5, 1974) ............................................................................... 5 
 
41 Fed. Reg. 24,272 (June 15, 1976) ............................................................................. 7 
 
42 Fed. Reg. 22,516 (May 3, 1977) ................................................................................ 8 
 
42 Fed. Reg. 45,535 (Sept. 9, 1977) ............................................................................... 5 
 
43 Fed. Reg. 2,586 (Jan. 17, 1978) ................................................................................ 9 
 
48 Fed. Reg. 51,086 (Nov. 4, 1983) ................................................................................ 8 
 
86 Fed. Reg. 61,402 (Nov. 5, 2021) .............................................................................. 11 
 
OTHER AUTHORITIES 
 
Cong. Rsch. Serv., Occupational Safety and Health Administration (OSHA): 
COVID-19 Emergency Temporary Standards (ETS) on Health Care 
Employment and Vaccinations and Testing for Large Employers (updated 
Dec. 
21, 
2021), 
available 
at 
https://crsreports.congress.gov/product/pdf/R/R46288 ............................................. 3 
 
 
 
 
 
 
 

 
1 
STATEMENT OF INTEREST OF AMICI CURIAE 
Advancing American Freedom, Inc. is a nonprofit organization that promotes 
traditional American values and defends policies that preserve liberty and protect 
American freedom against encroachment by the federal government and the 
administrative state.  AAF also advocates for policies that preserve federalism and 
the separation of powers.  AAF believes that it is the role of Congress to enact laws 
and the role of the Executive to enforce laws; it is not the role of the Executive to 
unilaterally expand laws that Congress approved.  AAF files amicus briefs in federal 
courts that support these principles.1   
SUMMARY OF THE ARGUMENT 
Through the separation of powers, the Framers of our Constitution tightly 
bounded the ability of the Executive Branch unilaterally to impose bodily mandates 
on American citizens, or to erect barriers to work, that were not clearly authorized by 
the peoples’ elected representatives in Congress.  The Occupational Safety and 
Health Administration’s (OSHA) recently published Emergency Temporary Standard 
(ETS), issued November 4, 2021, ignores those limitations.   
This brief analyzes the nine ETSs that OSHA promulgated prior to 2021, six 
of which were challenged in court, and five of which were vacated or stayed in whole 
or in part.  The brief explains that courts reviewing ETSs have rightly regarded 
attempts by OSHA to invoke its emergency authorities as a means to shortcut normal 
rulemaking requirements with deep suspicion, and have robustly policed the 
 
1  No counsel for a party authored this brief in whole or in part.  No person other than amici curiae 
made any monetary contribution intended to fund the preparation or submission of this brief.  

 
2 
limitations on those powers that were established by Congress.  This Court should 
follow the example of previous reviewing courts by acting now to prevent the 
irreparable harm to Americans, to jobs, to constitutional governance, and to our 
cherished freedoms that will be done if OSHA’s mandate is permitted to take effect. 
ARGUMENT 
The purpose of the Occupational Safety and Health Act (OSH Act) is “to assure 
so far as possible every working man and woman in the Nation safe and healthful 
working conditions.” 29 U.S.C. §651(b).  Under the OSH Act, the Secretary of Labor, 
through OSHA, can promulgate occupational safety and health standards following 
a rulemaking process similar to that prescribed under the Administrative Procedures 
Act. See 29 U.S.C. § 655(a)-(b).   
In very limited circumstances, the OSH Act permits OSHA to issue an 
“emergency temporary standard” (ETS) that takes effect immediately upon 
publication in the Federal Register and without engaging in the traditional notice-
and-comment rulemaking process. 29 U.S.C. § 655(c)(1); see Fla. Peach Grow. Ass’n 
v. U.S. Dept. of Labor, 489 F.2d 120, 124 (5th Cir. 1974) (“An emergency temporary 
standard . . . may be issued without regard to the notice, public comment and hearing 
provisions of the Administrative Procedure Act.”).  To invoke this emergency 
authority, OSHA must first determine “(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).   

 
3 
Because the ETS temporarily shortcuts certain procedural rule-making 
requirements and is “OSHA’s most dramatic weapon in its enforcement arsenal,” 
Asbestos Info. Ass’n v. OSHA, 727 F.2d 415, 426 (5th Cir. 1984), “[t]he key to” its 
“issuance” “is the necessity to protect employees from a grave danger,” Fla. Peach 
Grow. Ass’n, 489 F.2d at 124, and the existence of an “emergency situation,” id. at 
129-30.  Temporary standards may be effective for six months. 29 U.S.C. § 655(c)(2)-
(3).  After six months the standard must either be replaced with a permanent 
standard that was promulgated through notice-and-comment rulemaking or revoked. 
Id.    
Between 1971 and 2020, OSHA issued nine ETSs.  Each ETS was 
unambiguously linked to an asserted occupational danger or hazard and regulated 
conduct or mandated actions that were explicitly limited to the workplace.  Of these 
nine ETSs – all of which were promulgated in the late 1970s or early 1980s – six were 
challenged in court.  See e.g., Cong. Rsch. Serv., Occupational Safety and Health 
Administration (OSHA): COVID-19 Emergency Temporary Standards (ETS) on 
Health Care Employment and Vaccinations and Testing for Large Employers, at 35 
tbl. 
A-1 
(updated 
Dec. 
21, 
2021), 
available 
at 
https://crsreports.congress.gov/product/pdf/R/R46288.  Only one of the six challenged 
ETSs entirely survived judicial scrutiny.   
Courts reviewing ETSs have rightly regarded attempts by OSHA to shortcut 
the requirements of notice-and-comment rulemaking by invoking its emergency 
authorities with deep suspicion.  “Congress intended a carefully restricted use of the 

 
4 
emergency temporary standard[.]” Fla. Peach Grow. Ass’n, 489 F.2d at 130 n.16.  
Courts reviewing ETSs (and other OSHA regulations promulgated through its 
normal process) apply the substantial evidence test, thus taking “a harder look at 
OSHA’s action than [they] would if [they] were reviewing the action under the more 
deferential arbitrary and capricious standard applicable to agencies governed by the 
Administrative Procedure Act.” Asbestos Info. Ass’n, 727 F.2d at 421 (internal 
quotations omitted). 
By the early 1980s, courts had made it clear to OSHA that they would 
rigorously police Congress’s intended limitations on its emergency authorities.  
OSHA thereafter abandoned the use of ETSs for nearly four decades.  The COVID-19 
ETS that is now before the Court is OSHA’s first attempt to use of an ETS since its 
last ETS was invalidated in 1984. 
I. 
Historical Disposition of OSHA ETSs 
Three of OSHA’s prior ETSs were never challenged in court: 
1. 
In 1971, OSHA issued an ETS to “deal[] with the exposure of employees 
to asbestos dust.”  See 36 Fed. Reg. 23,207 (December 7, 1971).  The ETS stated 
that “increasing information on the results of exposure of employees to airborne 
asbestos dust [under the present standard] . . . constitutes a grave danger to 
employees[.]” Id (emphasis added).  The ETS sought to modify the “8-hour time-
weighted average airborne concentration of asbestos dust to which employees are 
exposed[.]” Id.   

 
5 
2. 
In 1974, OSHA issued an ETS regarding exposure levels to vinyl 
chloride.  39 Fed. Reg. 12,342 (April 5, 1974).  The ETS lowered the ceiling for 
worker exposure in the workplace. Id.    
3. 
In 1977, OSHA issued an ETS regarding exposure levels to DBCP.  42 
Fed. Reg. 45,535 (Sept. 9, 1977).  The ETS implemented a “time-weighted average” 
for worker exposure in the workplace. Id.    
Of the six OSHA ETSs that were challenged in court, five were enjoined or 
vacated in whole or in part: 
1. 
In 1973, OSHA issued an ETS to “deal[] with the exposure of employees 
to pesticides.” 38 Fed. Reg. 10,715 (May 1, 1973), amended by 38 Fed. Reg. 17,214 
(June 29, 1973).  The ETS explicitly noted that “[p]esticides, herbicides and 
fungicides used in the agricultural industry have increasingly become recognized 
as a particular source of hazard to large numbers of farmers and farmworkers.” 
Id.  The ETS sought to regulate worker exposure to several pesticides. Id.  Several 
months after OSHA promulgated the ETS, it issued a second ETS, amending the 
table of pesticides and promulgating “a new emergency temporary standard for 
the 
protection 
of 
farm 
workers 
from 
the 
occupational 
exposure 
to 
organophosphorous pesticide.” 38 Fed. Reg. 17,214 (June 29, 1973).  The ultimate 
purpose of this ETS was to “prescribe[] safeguards to be taken regarding the 
exposure of field workers to certain organophosphorous pesticides.”  Id.   
The U.S. Court of Appeals for the Fifth Circuit vacated the ETS, finding 
that “[t]he reasons published by the Secretary with the standards do not 

 
6 
themselves evidence a factual need for emergency standards.  The record supports 
the need for some standards, but not emergency standards.”  Fla. Peach Grow. 
Ass’n, 489 F.2d at 130.  The court noted that the “[e]xtraordinary power” provided 
to OSHA to promulgate ETSs “should be delicately exercised, and only in those 
emergency situations which require it.” Id. at 129-30.  It further stated that “an 
abundance of evidence [exists] that emergency standards are not necessary[;]” 
several investigative groups commissioned by the government to study the 
problem “firmly concluded that no emergency existed and that there was no 
justification for use of an emergency temporary standard.” Id. at 129.  The court 
also found that the record did not support a finding that workers faced a “grave 
danger” from exposure, as only a small number of employees became sick, with no 
associated deaths, and the illnesses have “been going on during the last several 
years thus failing to qualify for emergency measures.” Id. at 131.    
2. 
Also in 1973, OSHA issued an ETS to “deal[] with the exposure of 
employees to certain listed substances that are known to cause cancer.”  38 Fed. 
Reg. 10,929 (May 3, 1973).  The ETS explicitly identified 14 carcinogens that “are 
toxic and physically harmful” and found that the standard “is necessary to protect 
the employees from such exposure.” Id.  Like other ETS, OSHA’s regulatory action 
was limited to employee/employer workplace conduct.   
The U.S. Court of Appeals for the Third Circuit vacated and remanded 
the ETS to OSHA with respect to two of the challenged carcinogens, finding 
deficiencies in the agency’s statement of reasons. Dry Color Mfrs. Ass’n Inc. v. Dep. 

 
7 
of Labor, 486 F.2d 98, 107 (3d Cir. 1973).  The court found that the statement of 
reasons was insufficient because it “fail[ed] to set forth the basis for its finding 
that the 14 chemicals listed in the standard are carcinogens” and “failed to offer 
any explanation as to why this particular standard is necessary to protect the 
employees from such exposure.” Id. at 106-07 (internal quotations omitted).  The 
court’s reasoning emphasized that to justify invocation of its emergency 
authorities, OSHA must make specific findings demonstrating why the standard 
is necessary to protect employees.   
In dicta, the Third Circuit also questioned whether substantial evidence 
supported OSHA’s finding that the two carcinogens subjected workers to a grave 
danger, as the evidence at most demonstrated a “potential” to cause cancer in 
humans. Id. at 104-05.  The court stated that emergency standards “must be 
supported by evidence that shows more than some possibility” of harm. Id. at 104. 
3. 
In 1976, OSHA issued an ETS “to protect divers from the grave dangers 
to which their occupation subjects them.” 41 Fed. Reg. 24,272 (June 15, 1976).  The 
ETS noted that regulations were necessary because “unsafe practices” were 
occurring within the diving industry.  Although the ETS generally noted the grave 
dangers in diving, it only regulated diving activities within the employee/employer 
relationship. Id.  Indeed, the ETS specifically noted that “diving by persons 
engaged in recreational or sport diving or other diving not in an employment 
context are beyond the jurisdiction of the Act.” Id. 

 
8 
In a per curium opinion, the United States Court of Appeals for the Fifth 
Circuit stayed the ETS on grounds that the challengers were likely to prevail on 
the merits, finding that ETSs should only be “exercised . . . in those emergency 
situations which require it” and that the “underlying facts” did not support such 
an emergency. Taylor Diving Salvage v. U.S. Dept. of Labor, 537 F.2d 819, 820-21 
(5th Cir. 1976).  
4. 
In 1977, OSHA concluded that data “conclusively establish[ed] that 
employee exposure to benzene presents a leukemia hazard.” 42 Fed. Reg. 22,516 
(May 3, 1977).  The agency issued an ETS that limited “employee exposure to 
benzene . . . as an 8 hour time-weighted average concentration” and implemented 
monitoring requirements that measure employee exposure. Id.   
The United States Court of Appeals for the Fifth Circuit stayed the ETS. 
See Indus. U. Dept., AFL-CIO v. Bingham, 570 F.2d 965, 968 (D.C. Cir. 1977); see 
also Am. Petrol. Inst. v. OSHA, 581 F.2d 493, 499 (5th Cir. 1978). 
5. 
In 1983, OSHA issued its last ETS prior to 2021, which sought “to reduce 
the permissible exposure limit [] for asbestos . . . per cubic centimeter as an eight-
hour time-weighted average[.]” 48 Fed. Reg. 51,086 (Nov. 4, 1983).  The agency 
believed that the ETS was necessary because continued exposure to asbestos at 
the current standards presented a “grave danger” to employees “of developing 
asbestos-induced cancer[.]” Id.  Like every other ETS issued to date, OSHA’s 
regulations were limited to employee/employer workplace conduct.   

 
9 
The United States Court of Appeals for the Fifth Circuit stayed the ETS 
“because the record, considered as a whole, [did] not indicate that the risk the ETS 
seeks to eliminate is grave, as OSHA itself has defined it, or that the ETS is 
necessary, as those terms are used in the ETS statute.” Asbestos Info. Ass’n, 727 
F.2d at 427 (internal quotations omitted).  In reaching this conclusion, the court 
noted that “[n]o new data or discovery leads OSHA to invoke its extraordinary 
ETS powers,” id. at 418, and that the agency could accomplish its objectives 
through current regulations that require use of respirators, id. at 426. 
Of the six OSHA ETSs that were challenged in court, only one withstood 
judicial scrutiny: 
1. 
In 1978, OSHA issued an ETS amending its prior standard concerning 
employee exposure to vinyl cyanide to further reduce the permissible exposure 
level as an 8-hour time-weighted average concentration. 43 Fed. Reg. 2,586 (Jan. 
17, 1978).   
The United States Court of Appeals for the Sixth Circuit declined to stay 
the ETS, based upon a study that the chemical caused cancer in rats, and a second 
study that showed multiple cancer cases in plant workers who were exposed to 
the chemical. Vistron v. OSHA, 6 OSHC 1483 (6th Cir. 1978). 
II. 
Common Characteristics of Past OSHA ETSs 
OSHA’s nine historical ETS share three common characteristics worthy of the 
Court’s consideration.   
First, no prior ETS attempted to require or coerce employees “to undertake a 
medical procedure (a vaccination) that cannot be undone at the end of the workday.” 

 
10 
In re: MCP No. 165, Occupational Safety & Health Admin. Interim Final Rule: 
COVID-19 Vaccination and Testing; Emergency Temporary Standard 86 Fed. Reg. 
61402 (Sutton, C.J., dissenting from the denial of initial hearing en banc).   
Second, each ETS sought to regulate an asserted occupational danger or toxin 
that arose directly, significantly, or exclusively in the workplace, such as workplace 
exposure to asbestos, pesticides, carcinogens, or chemicals. See id. (“As a threshold 
matter, the Act is designed to protect employees from dangers that arise directly out 
of the workplace and addresses only workplace conditions, as the title of the Act 
suggests . . . and as the rest of the Act confirms. The language of the Act covers 
dangers arising out of work, say a chemical used to make a plastic product or the heat 
generated at a steel foundry, not any risk facing the country and every citizen in it.”); 
see also Indus. Union Dept. v. Amer. Petroleum Inst., 448 U.S. 607, 615-16 (1980) 
(“[Although] [t]he entire population of the United States is exposed to small 
quantities of benzene,” a toxic substance, OSHA only sought to regulate the 
conditions of “workers [who were] subject to additional low-level exposures as a 
consequence of their employment.”).  “The virus that causes COVID-19 is not, of 
course, uniquely a workplace condition.” In re: MCP No. 165, Occupational Safety & 
Health Admin. Interim Final Rule: COVID-19 Vaccination and Testing; Emergency 
Temporary Standard 86 Fed. Reg. 61402 (Larsen, J., dissenting).   
Finally, courts have struck down ETSs where OSHA failed to substantiate the 
existence of a true emergency, as distinct from continuing everyday hazards, or where 
OSHA’s assertion that the targeted danger was “grave” was found to be insufficiently 

 
11 
supported.  In the instant case, OSHA’s thin justification for invocation of its 
extraordinary emergency authorities, which is described at length in the Applicants’ 
chief briefs, strongly suggests that the Biden Administration is not truly seeking to 
mitigate workplace hazards through the ETS, but rather is attempting to use OSHA 
to accomplish an end that it has been unable to persuade Congress to support:   the 
mandatory vaccination of the American public.  See BST Holdings, L.L.C. v. OSHA, 
No. 21-60845 n.13 (5th Cir. Nov. 12, 2021) (“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.”) (internal 
quotations omitted) (emphasis in original). 
CONCLUSION 
 The Sixth Circuit erred when it lifted the Fifth Circuit’s stay of OSHA’s 
“COVID-19 Vaccination and Testing; Emergency Temporary Standard,” 86 Fed. Reg. 
61,402 (Nov. 5, 2021).  The Court should reverse, and immediately stay the ETS.    
Respectfully submitted, 
Matthew J. Sheehan 
   Counsel of Record  
Advancing American Freedom, Inc. 
801 Pennsylvania Avenue, N.W.  
Washington, D.C. 20004 
(202) 780-4848 
matt@advancingamericanfreedom.com

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