Court filing

Application - Scotus

Full text

Nos. 21A243, 21A244, 21A245, 21A246,
21A247, 21A248, 21A249, 21A250

In The
Supreme Court of the United States
________________

JOB CREATORS NETWORK ET AL.,
Applicants,

DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY
AND HEALTH ADMINISTRATION ET AL.,
Respondents.

[additional captions on inside cover]
________________

On Emergency Applications For Stay of Agency Standard
Pending The Disposition By the United States Court of Appeals
for the Sixth Circuit of a Petition For Review and any Further
Proceedings in This Court or, Alternatively, Petition For A Writ
Of Certiorari Before Judgment And Stay Pending Resolution
________________

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF AND
BRIEF OF WASHINGTON LEGAL FOUNDATION AS AMICUS
CURIAE SUPPORTING APPLICANTS, A STAY OF AGENCY
STANDARD, AND CERTIORARI BEFORE JUDGMENT
________________
John M. Masslon II
Counsel of Record
Cory L. Andrews
WASHINGTON LEGAL FOUNDATION
2009 Massachusetts Ave. NW
Washington, DC 20036
(202) 588-0302
jmasslon@wlf.org
DECEMBER 2021
NATIONAL FEDERATION OF INDEPENDENT BUSINESS ET AL.,
Applicants,
V.
DEPARTMENT OF LABOR OCCUPATIONAL SAFETY
AND HEALTH ADMINISTRATION ET AL.,
________________ Respondents.
PHILLIPS MANUFACTURING & TOWER COMPANY ET AL.,
Applicants,
V.
DEPARTMENT OF LABOR OCCUPATIONAL SAFETY
AND HEALTH ADMINISTRATION ET AL.,
________________ Respondents.
THE SOUTHERN BAPTIST THEOLOGICAL SEMINARY ET AL.,
Applicants,
V.
DEPARTMENT OF LABOR OCCUPATIONAL SAFETY
AND HEALTH ADMINISTRATION ET AL.,
________________ Respondents.
STATE OF OHIO ET AL.,
Applicants,
V.
DEPARTMENT OF LABOR OCCUPATIONAL SAFETY
AND HEALTH ADMINISTRATION ET AL.,
________________ Respondents.
BST HOLDINGS, LLC ET AL.,
Applicants,
V.
DEPARTMENT OF LABOR OCCUPATIONAL SAFETY
AND HEALTH ADMINISTRATION ET AL.,
________________ Respondents.
HERITAGE FOUNDATION,
Applicant,
V.
DEPARTMENT OF LABOR OCCUPATIONAL SAFETY
AND HEALTH ADMINISTRATION ET AL.,
________________ Respondents.
WORD OF GOD FELLOWSHIP, INC. D/B/A
DAYSTAR TELEVISION NETWORK ET AL.
Applicants,
V.
DEPARTMENT OF LABOR OCCUPATIONAL SAFETY
AND HEALTH ADMINISTRATION ET AL.,
Respondents.
i

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF
Washington Legal Foundation moves for leave to file
the attached brief as amicus curiae supporting the
applications to reinstate the stay of the Occupational
Safety and Health Administration’s illegal emergency
temporary standard without ten days’ notice to the parties
of its intent to file as normally required by this Court’s
Rule 37.2(a). Given the anticipated expedited briefing
schedule, it was not feasible to give the parties ten days’
notice of the filing of this brief.
Washington Legal Foundation is a nonprofit, public-
interest law firm and policy center with supporters
nationwide. WLF promotes free enterprise, individual
rights, limited government, and the rule of law. It often
appears as amicus opposing the accumulation of power in
any one governmental branch, which violates the
Constitution’s careful separation of powers. See, e.g., Lucia
v. SEC, 138 S. Ct. 2044 (2018); Free Enter. Fund v. Pub. Co.
Acct. Oversight Bd., 561 U.S. 477 (2010).
The attached amicus brief includes arguments and
citations to authorities that are not included in the
pending applications for stay. It focuses on why OSHA’s
ETS will harm our economy by causing more supply-chain
disruptions. It also explains why OSHA’s failure to act for
over twenty-one months shows that the emergency
temporary standard process was not the proper way to
enact this policy proposal. Finally, the brief explains why
certiorari before judgment is appropriate here.
National Federation of Independent Business et al.,
State of Ohio et al., The Southern Baptist Theological
Seminary et al., Phillips Manufacturing & Tower Company
et al., and BST Holdings, LLC et al. consent to granting the
motion. Respondents and the other Applicants did not
respond to an email seeking their position on the motion
before it was printed.
ii

WLF thus moves for leave to file the attached amicus
brief.
Respectfully submitted,

John M. Masslon II
Counsel of Record
Cory L. Andrews
WASHINGTON LEGAL FOUNDATION
2009 Massachusetts Ave. NW
Washington, DC 20036
(202) 588-0302
jmasslon@wlf.org

DECEMBER 2021
iii

QUESTIONS PRESENTED
1. Whether the Court should stay the emergency
temporary standard that the Occupational Safety and
Health Administration issued, which exceeded its
statutory authority and violates the United States
Constitution.
2. Whether the Court should grant certiorari before
judgment so that it can review the ETS before the cases
become moot.
iv

TABLE OF CONTENTS

Page

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF ........ i

QUESTIONS PRESENTED ..............................................................iii

TABLE OF AUTHORITIES ............................................................... v

INTEREST OF AMICUS CURIAE .................................................... 1

INTRODUCTION & SUMMARY OF ARGUMENT ..................... 1

ARGUMENT ......................................................................................... 3

I. THE COURT SHOULD STAY THE ETS PENDING FINAL
DISPOSITION OF APPLICANTS’ CHALLENGES .............................. 3

A. The ETS Will Hurt The Economy ........................ 4

B. OSHA’s Delay In Issuing The ETS Shows
The Mandate Should Have Undergone
Notice-And-Comment Rulemaking .................... 8

II. THE COURT SHOULD GRANT CERTIORARI BEFORE
JUDGMENT ....................................................................................... 12

CONCLUSION ................................................................................... 14
v

TABLE OF AUTHORITIES

Page(s)
Cases
Air Transp. Ass’n of Am. v. DOT,
900 F.2d 369 (D.C. Cir. 1990) ............................................. 10
Browning-Ferris Indus. of Cal., Inc. v. NLRB,
911 F.3d 1195 (D.C. Cir. 2018) ............................................. 1
BST Holdings, L.L.C. v. OSHA,
17 F.4th 604 (5th Cir. 2021) ............................................... 10
Dry Color Mfrs. Ass’n, Inc. v. DOL,
486 F.2d 98 (3d Cir. 1973) .................................................. 10
Env’tl Def. Fund v. EPA,
716 F.2d 915 (D.C. Cir. 1983) ............................................. 10
Fla. Peach Growers Ass’n, Inc.
v. U.S. Dep’t of Lab.,
489 F.2d 120 (5th Cir. 1974) .............................................. 10
In re AFL-CIO,
2020 WL 3125324
(D.C. Cir. June 11, 2020) .......................................................... 9
In re Velox Express, Inc.,
2019 WL 7584332
(N.L.R.B. Sept. 30, 2019) ......................................................... 1
Nat’l Ass’n of Farmworkers Orgs. v. Marshall,
628 F.2d 604 (D.C. Cir. 1980) ...................................... 10, 11
Parker Drilling Mgmt. Servs., Ltd. v. Newton,
139 S. Ct. 1881 (2019) ............................................................. 1
United States v. Texas,
142 S. Ct. 14 (2021) ............................................................... 12
United States v. Texas,
2021 WL 5855550 (U.S. Dec. 10, 2021) ......................... 12
vi

TABLE OF AUTHORITIES
(continued)
Page(s)

Whole Woman’s Health v. Jackson,
2021 WL 4928617 (U.S. Oct. 22, 2021) .......................... 12
Whole Woman’s Health v. Jackson,
2021 WL 5855551 (U.S. Dec. 10, 2021) ......................... 12
Wisconsin Cent. Ltd. v. United States,
138 S. Ct. 2067 (2018) .......................................................... 10
Statutes
5 U.S.C. § 533(b)(B) ....................................................................... 10
29 U.S.C. § 652(8).............................................................................. 9
29 U.S.C § 655(c)(1) ............................................................. 8, 9, 10
29 U.S.C. § 655(c)(3) ..................................................................... 12
Regulation
Exec. Order No. 14,017, 86 Fed. Reg. 11,849
(Mar. 1, 2021) ............................................................................. 4
Other Authorities
Ashley Bowerman, Labor shortages, supply
chain issues affecting retailers, WSFA-12
News (Dec. 13, 2021) ............................................................... 6
Chaim Gartenberg, Heated seats for 2022
Chevy trucks are the latest victim of the
chip shortage, The Verge
(Nov. 17, 2021) ...................................................................... 1, 5
Cong. Research Serv., Occupational Safety
and Health Administration (OSHA):
Emergency Temporary Standards (ETS)
and COVID-19, R46288 (Sept. 13, 2021) ........................ 11
vii

TABLE OF AUTHORITIES
(continued)
Page(s)

Elizabeth Chuck, Growing number of
companies suspend vaccine mandates,
including hospitals and Amtrak, NBC
News (Dec. 16, 2021) ............................................................... 6
Forum News Service, Sticker shock: Supply-
chain issues holding up Minnesota DVS
tab renewals (Dec. 17, 2021) ............................................ 4, 5
Katelyn Carralle, Biden will invest $30
million in the trucking industry to hire
more drivers after the crippling supply
chain crisis and backlash over the
vaccine mandates, Daily Mail
(Dec. 16, 2021) ........................................................................... 7
Martin Farrer, Global supply chain crisis
could last another two years, warn
experts, The Guardian (Dec. 18, 2021) ......................... 4, 5
Megan Leonhardt, 55% of people blame the
government for the supply chain crunch.
But what's actually behind the
slowdown?, Fortune (Dec. 16, 2021)................................... 6
Michael Willems, Covid silver lining:
'Extremely mild' Omicron variant is
rapidly killing off much more deadly
Delta coronavirus mutation, City A.M.
(Dec. 6, 2021) .............................................................................. 9
Molly Osberg, Black Friday's Supply Chain
Problems Are Really Labor Problems,
The New Republic (Nov. 25, 2021) ..................................... 5
viii

TABLE OF AUTHORITIES
(continued)
Page(s)

Robbie Whelan & Melanie Evans, Some
Hospitals Drop Covid-19 Vaccine
Mandates to Ease Labor Shortages, Wall
Street Journal (Dec. 13, 2021) .............................................. 6
S. Rep. No. 91-1282 (1970) ........................................................ 10
Sergei Klebnikov, Rivian Shares Fall To
Record Low As Company Warns Of
Supply Chain Issues, Forbes
(Dec. 17, 2021) ........................................................................... 5
Steve Scherer & David Shepardson,
Canadian, U.S. truckers warn vaccine
mandates will disrupt supply chains,
Reuters (Dec. 3, 2021) ............................................................. 7
Thomas Black, Supply-chain hell ignites
economic boom along U.S.-Mexico
border, Pittsburgh Post-Gazette
(Dec. 18, 2021) ........................................................................... 4
Tonya Garcia, Is Fido finicky? Pet food gets
hit by supply-chain disruptions,
MarketWatch (Dec. 18, 2021) ............................................... 4
U.S. Bureau of Labor, Consumer Price Index
(Dec. 10, 2021) ........................................................................... 2
INTEREST OF AMICUS CURIAE*
Washington Legal Foundation is a nonprofit, public-
interest law firm and policy center with supporters
nationwide. WLF promotes free enterprise, individual
rights, limited government, and the rule of law. To that
end, WLF often appears before federal tribunals
supporting economy-boosting employment rules and
opposing economy-destroying rules. See, e.g., Parker
Drilling Mgmt. Servs., Ltd. v. Newton, 139 S. Ct. 1881
(2019); In re Velox Express, Inc., 2019 WL 7584332
(N.L.R.B. Sept. 30, 2019); Browning-Ferris Indus. of Cal.,
Inc. v. NLRB, 911 F.3d 1195 (D.C. Cir. 2018).
INTRODUCTION & SUMMARY OF ARGUMENT
Anyone who has tried to buy a car recently knows how
difficult it is to find both new and used cars in stock. The
dealerships lucky enough to have inventory to sell are
asking over $10,000 above the manufacturer’s suggested
retail price. And unlike normal times, the dealerships are
not negotiating with consumers. Even one who pays this
markup and grabs a coveted new car will not receive the
same features that have become standard on most
vehicles. For example, General Motors has stopped
offering heated seats and steering wheels on its new
trucks and sport utility vehicles. See Chaim Gartenberg,
Heated seats for 2022 Chevy trucks are the latest victim of
the chip shortage, The Verge (Nov. 17, 2021),
https://bit.ly/3yFU2uk.
Similar shortages are evident at the grocery store.
Many shelves normally full of goods are now barren or
have scarce goods. The food and other items on the shelf

* No party’s counsel authored any part of this brief. No person or

entity, other than amicus and its counsel, paid for the brief’s
preparation or submission.
2

cost far more than they did just a few months ago. Last
month, the Consumer Price Index rose by an annual rate
of 9.6%. See U.S. Bureau of Labor, Consumer Price Index
(Dec. 10, 2021), https://www.bls.gov/cpi/. These
increased prices are hurting consumers during a time—
the Christmas season—when they can least afford it.
What is causing these supply-chain issues and raising
prices? Vaccine mandates. When governments or
companies require employees to get vaccinated, many
employees quit or are fired. Those positions often remain
unfilled because many job seekers either refuse to join
companies that require vaccines or move to jurisdictions
without vaccine mandates.
It makes no sense for the federal government to
exacerbate this problem by instituting a nationwide
vaccine mandate for most businesses critical to our
national economy. Rather than help alleviate the supply-
chain issues, it will only cause further problems. If the
Sixth Circuit’s mistaken decision is left to stand, the result
will be greater supply-chain shortages. This will have a
devastating effect on our economy, right when it is starting
to recover from the corrosive restrictions that many
governments imposed at the start of the COVID-19
pandemic.
What is even more troubling is that all of this is being
done by the Occupational Safety and Health
Administration using an emergency temporary standard.
The Occupational Safety and Health Act does not give
OSHA the power to regulate non-workplace safety issues
like employees’ personal or religious decisions to forgo
receiving a vaccine. Even if the OSH Act permitted the
agency to issue such an order, it must be done through
normal notice-and-comment rulemaking—not an
emergency temporary standard. That process is reserved
for new issues that require immediate action, not
something that arose over twenty-one months ago.
3

Allowing OSHA to exceed its legislative grant of authority
gives the Executive Branch far too much power and
violates core separation-of-powers principles.
Half of the Sixth Circuit’s active judges believe that the
ETS should be stayed. So too for a majority of the Fifth
Circuit panel that originally considered whether to stay
the ETS. Yet because of the vagaries of the Sixth Circuit’s
panel assignment, two judges decided to ignore the
reasoned legal judgment of most of the circuit judges who
have considered the issue and lifted the Fifth Circuit’s stay
of the ETS. The Court’s urgent intervention is necessary to
reinstate the stay and keep our country’s economy from
spiraling into a recession while protecting the conscience
rights of millions of American citizens.
Earlier this year, the Court granted certiorari before
judgment in two cases based only on public pressure.
There, the Court ended up keeping in place most of the
Fifth Circuit’s decision. Here, the Court’s quick disposition
of the issue is even more justified. Left to stand, the Sixth
Circuit’s decision would seriously undermine our
tripartite form of government while wrecking the
economy. If the case proceeds normally, the ETS will
expire before the Court has a chance to weigh in on this
critical issue. Thus, the Court should also grant certiorari
before judgment.
ARGUMENT
I. THE COURT SHOULD STAY THE ETS PENDING FINAL
DISPOSITION OF APPLICANTS’ CHALLENGES.
The Court should immediately stay the ETS pending
final disposition of the case in the Sixth Circuit and this
Court. Any other action would lead to economic
devastation, the loss of freedom of conscience in the
United States, and a rebuke of the Constitution’s core
separation-of-powers principles.
4

A. The ETS Will Hurt The Economy.
The Court should immediately stay the ETS pending
final disposition of the case in the Sixth Circuit and this
Court. Otherwise, our already fragile economy will suffer
more. Even the administration admits that supply-chain
problems are real. See, e.g., Exec. Order No. 14,017, 86 Fed.
Reg. 11,849 (Mar. 1, 2021). But contrary to what the
government says, the gravity of those supply-chain
problems has not diminished over the past several
months. Rather, the supply-chain problems are as serious
today as they were in March. Just Saturday, “Maersk, one of
the big three shipping companies, said the worst delays
were still on the US west coast where ships were waiting
four weeks to unload.” Martin Farrer, Global supply chain
crisis could last another two years, warn experts, The
Guardian (Dec. 18, 2021), https://bit.ly/3p4hi1M.
It is hard to overstate the extent of the problem caused
by the supply-chain issues on the West Coast. MGA
Entertainment, for example, “has 750 containers of toys
stuck in supply-chain hell at ports around Los Angeles.
Produced in China, those items were supposed to be on
U.S. store shelves this holiday season. That won’t happen.”
Thomas Black, Supply-chain hell ignites economic boom
along U.S.-Mexico border, Pittsburgh Post-Gazette (Dec. 18,
2021), https://bit.ly/326uo5O.
Although many problems are due to backups on the
West Coast, the effect is not limited to that geographic
region. For example, “Shortages of wet dog food persisted,
while out-of-stock levels in areas like third-party and
proprietary branded hardgoods [have] increased” across
the country. Tonya Garcia, Is Fido finicky? Pet food gets hit
by supply-chain disruptions, MarketWatch (Dec. 18, 2021),
https://on.mktw.net/33vPvii. In Minnesota, drivers who
renew their vehicle registration online won’t be receiving
the required stickers on time because of the supply-chain
issues. See Forum News Service, Sticker shock: Supply-
5

chain issues holding up Minnesota DVS tab renewals (Dec.
17, 2021), https://bit.ly/3e6CFZT.
And it’s not just foreign products affected by the
supply-chain problems. American-made products face
similar setbacks. As mentioned above, General Motors is
no longer offering heated seats and steering wheels due to
the supply-chain shortage. Gartenberg, supra. General
Motors is not the only carmaker that cannot meet
consumer demand given the supply-chain problems. For
example, Rivian has said that it cannot fulfill next year’s
production targets because of ongoing supply-chain
issues. See Sergei Klebnikov, Rivian Shares Fall To Record
Low As Company Warns Of Supply Chain Issues, Forbes
(Dec. 17, 2021), https://bit.ly/3sigOH9.
So what is at the root of many of the supply-chain
issues? The answer is simple: A lack of workers. For
example, Maersk says that the four-week backup on the
West Coast is mainly “due to the lack of workers on land.”
Farrer, supra. In other words, there are not enough
workers who can operate the large cranes needed to
unload the container boxes that weigh tons. Nor are there
enough workers to use forklifts and other equipment
needed to move the goods from the shipping containers to
trains and trucks that can transport them across our
nation.
But even then, there is a problem. Although there are
plenty of licensed commercial drivers who could get the
goods from ports to stores, they simply are not taking the
jobs. See Molly Osberg, Black Friday’s Supply Chain
Problems Are Really Labor Problems, The New Republic
(Nov. 25, 2021), https://bit.ly/3mgpmLc. So once the
goods are unloaded there are not enough truckers to
transport them the last miles needed to reach consumers.
A lack of workers is currently most acute for the
shipping industry—a key cog in the supply chain. But the
6

problem is not limited to truckers and crane operators.
“[I]ndustries along the supply chain” are all affected by the
worker shortages. See Megan Leonhardt, 55% of people
blame the government for the supply chain crunch. But
what’s actually behind the slowdown?, Fortune (Dec. 16,
2021), https://bit.ly/3E2EYb6. Even when goods get to
stores, those stores are having trouble keeping the doors
open because of the labor shortage. See Ashley Bowerman,
Labor shortages, supply chain issues affecting retailers,
WSFA-12 News (Dec. 13, 2021), https://bit.ly/32bGIS6. In
sum, labor shortages are causing the supply-chain issues
plaguing our nation’s economy.
The next logical question to ask is: why is there a labor
shortage? One reason that the government refuses to
acknowledge is vaccine mandates. Even in the healthcare
industry, where vaccination rates are much higher than in
the general population, companies dropped their vaccine
mandates after a lower federal court held that Centers for
Medicare & Medicaid Services could not enforce its vaccine
mandate. Robbie Whelan & Melanie Evans, Some Hospitals
Drop Covid-19 Vaccine Mandates to Ease Labor Shortages,
Wall Street Journal (Dec. 13, 2021), https://on.wsj.com/
3GU9JAW. For example, the Cleveland Clinic would have
lost fifteen percent of its workforce had it enforced a
vaccine mandate. Elizabeth Chuck, Growing number of
companies suspend vaccine mandates, including hospitals
and Amtrak, NBC News (Dec. 16, 2021), https://nbcnews.
to/3mCgMGP. That would be devastating to a hospital’s
workforce.
OSHA has jurisdiction over many of these same health
systems that have suspended their vaccine mandates to
address the labor shortage. So this is yet another way that
our economy will be harmed if the Court does not step in
and stay the ETS. Imagine what will happen if more people
cannot receive the necessary care because a medical
provider is short staffed after the ETS takes effect. Not only
7

would the medical industry be negatively affected, all
industries that rely on workers could face hurdles to
economic recovery.
But it may be the supply chain that sees the biggest
shock if the Court does not intervene. The ETS “will further
disrupt supply chains because there is already a dire
shortage of drivers.” Steve Scherer & David Shepardson,
Canadian, U.S. truckers warn vaccine mandates will disrupt
supply chains, Reuters (Dec. 3, 2021), https://reut.rs/
3J1DWQ7. About 16,000 American truck drivers are
unvaccinated and would be affected by the ETS. See id.
That is why the ETS “could have devastating impacts on
the supply chain and the economy.” Id. (quotation
omitted).
Many “truckers would rather quit, retire or change jobs
than get the vaccine through the [ETS].” Katelyn Carralle,
Biden will invest $30 million in the trucking industry to hire
more drivers after the crippling supply chain crisis and
backlash over the vaccine mandates, Daily Mail (Dec. 16,
2021), https://bit.ly/33LaE8B. Trucking company
executives have repeatedly told OSHA and others about
these concerns. See id. But instead of acknowledging that
the ETS needs to go, the response has been to throw
money at the problem; money that will not fix the root
cause of the trucker shortage. See id.
The ETS will thus have a crippling effect on our nation’s
economy. Most companies key to the supply chain have
more than 100 employees. So under the ETS, employees
must show proof of vaccination to their employer or risk
being fired. If the company decides to allow workers to test
weekly to keep their jobs, they can pass on the cost of those
tests to the employees. Failure to test or be vaccinated
means a worker must be removed from the workforce.
There are thus several barriers to hiring and retaining
workers for companies. Many workers or job applicants do
8

not want to tell their bosses their vaccine status. They are
not required to disclosure whether they received the HPV
or the Shingles vaccine. So in their view, they should also
not have to disclose if they have been vaccinated against
COVID-19. Then there is the problem of getting the
vaccine. Many are hesitant because of religious concerns,
medical concerns, or other feelings about the vaccine. For
companies willing to allow testing, these employees might
have to foot the bill. Most supply-chain workers are not
rich and paying for these tests would be a financial burden.
So they are likely to seek employment elsewhere or just
collect unemployment checks, which may be larger than
their net paychecks considering the COVID-19 testing
costs their employers may pass on.
There is no way to view this as helping with the supply-
chain problem. Experience proves this. Some companies
with vaccine mandates have lifted them. If they attracted
and retained more workers because of the mandates, or
had more of their staff show up to work with the mandates,
they would not have lifted the mandates. These companies
understand that they lose far more workers when they
impose a vaccine mandate than when they leave it up to
individuals to decide. Thus, the ETS will continue to hurt
the economy if the Court does not stay it now.
B. OSHA’s Delay In Issuing The ETS Shows
The Mandate Should Have Undergone
Notice-And-Comment Rulemaking.
OSHA may issue an emergency temporary standard
only 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). OSHA cannot satisfy either requirement.
9

Start with whether employees face “grave danger.” At
the start of the pandemic, many of the first people infected
with COVID-19 became very ill. Some even died. But since
then, we have seen a string of variants that have become
dominant. The scientific consensus is that the omicron
variant is the one that will dominate moving forward. This
is because it is much easier to transmit than the current
dominant variant, delta. See Michael Willems, Covid silver
lining: ‘Extremely mild’ Omicron variant is rapidly killing off
much more deadly Delta coronavirus mutation, City A.M.
(Dec. 6, 2021), https://bit.ly/3GWnMWs. But experts are
“ecstatic because” omicron is “much milder and less
deadly” than previous variants. See id.
So if the ETS had been issued at the start of the
pandemic, OSHA may have been able to satisfy the first
requirement for issuing an emergency temporary
standard. Last year, however, OSHA argued vociferously in
the District of Columbia Circuit that it need not issue an
ETS. See In re AFL-CIO, 2020 WL 3125324 (D.C. Cir. June
11, 2020) (per curiam). And the D.C. Circuit agreed with
OSHA. See id. It makes no sense to say that grave danger
was lacking when a much deadlier virus was spreading
only to turn around and argue that there is now a grave
danger despite the less deadly variant becoming the
dominant strain.
But even if COVID-19 currently poses a grave danger to
employees, OSHA still lacked the statutory authority to
issue the ETS. It may issue an emergency temporary
standard only if it is “necessary.” 29 U.S.C. § 655(c)(1). It
was unnecessary to issue the ETS. OSHA had over twenty-
one months after the pandemic began in the United States
to undertake notice-and-comment rulemaking. It failed to
do so.
OSHA regulations that satisfy notice-and-comment
rulemaking need only be “reasonably necessary or
appropriate.” 29 U.S.C. § 652(8). As the Court has
10

explained, when Congress uses narrower language in one
part of a statute, it is assumed to have a different meaning
than broader language passed by the same Congress. See
Wisconsin Cent. Ltd. v. United States, 138 S. Ct. 2067, 2072
(2018). Congress used the narrower “necessary” when
defining when OSHA may regulate grave dangers under
Section 655(c)(1). In other words, “Congress intended a
carefully restricted use of the emergency temporary
standard.” Fla. Peach Growers Ass’n, Inc. v. U.S. Dep’t of Lab.,
489 F.2d 120, 130 n.16 (5th Cir. 1974).
OSHA “cannot use its ETS powers as a stop-gap
measure.” BST Holdings, L.L.C. v. OSHA, 17 F.4th 604, 616
(5tb Cir. 2021) (cleaned up). Rather, the emergency
temporary standard process can be used only as “an
unusual response to exceptional circumstances.” Dry Color
Mfrs. Ass’n, Inc. v. DOL, 486 F.2d 98, 104 n.9a (3d Cir. 1973);
see also S. Rep. No. 91-1282, at 7 (1970).
Section 655(c) resembles 5 U.S.C. § 533(b)(B), which
permits other federal agencies to bypass notice-and-
comment rulemaking if they can prove “good cause.”
Because many agencies try to use this good-cause
exception to eliminate notice-and-comment rulemaking,
there is a good body of case law explaining what qualifies
as good cause. These decisions show that delay in deciding
to issue a regulation cannot form the good cause needed to
bypass notice-and-comment rulemaking.
In one case, the District of Columbia Circuit explained
that “the FAA [wa]s foreclosed from relying on the good
cause exception” because it “waited almost nine months
before taking action.” Air Transp. Ass’n of Am. v. DOT, 900
F.2d 369, 379 (D.C. Cir. 1990), vacated on other grounds,
498 U.S. 1077 (1991). The D.C. Circuit similarly has found
that eight-month and seven-month delays foreclosed the
possibility of agencies invoking the good-cause exception.
See Env’tl Def. Fund v. EPA, 716 F.2d 915, 921 (D.C. Cir.
1983) (per curiam); Nat’l Ass’n of Farmworkers Orgs. v.
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Marshall, 628 F.2d 604, 622 (D.C. Cir. 1980). Proper
notice-and-comment rulemaking can be done in seven
months or less. Yet in each case the agency tried to bypass
that step by using the good-cause exception. Each time, the
D.C. Circuit properly held that the agency could not do so.
The COVID-19 pandemic hit the United States in March
2020—twenty-one months before OSHA issued the ETS.
Vaccines became available in December 2020, eleven
months before the ETS. And President Biden took office in
January 2021, ten months before OSHA issued the ETS. As
the cases above show, such extensive delay in issuing an
emergency temporary standard is fatal. OSHA had to go
through the notice-and-comment rulemaking process if it
wanted a vaccine mandate.
OSHA knows how stringent the requirements are for
using its emergency temporary standard authority. Before
this year, it issued only nine since it was first given that
power over fifty years ago. Of those, only one survived
judicial challenge. See Cong. Research Serv., Occupational
Safety and Health Administration (OSHA): Emergency
Temporary Standards (ETS) and COVID-19, R46288, 35-36
(Sept. 13, 2021). But rather than stick to its statutory
authority and issue emergency temporary standards only
when necessary to address a grave danger, OSHA caved to
President Biden’s pressure and issued the illegal ETS.
The Sixth Circuit then twisted itself into a pretzel to
find that OSHA had the statutory authority to issue the
ETS. Rather than give the word “necessary” its common
meaning, the majority held that an emergency temporary
standard need not be indispensable to be necessary. See
Phillips App. 25-26. But if the ETS is not indispensable, it
cannot be necessary to combat a grave danger.
The ETS therefore was unnecessary. OSHA has a better
chance of defending a vaccine mandate issued through
notice-and-comment rulemaking than it does through the
12

emergency temporary standard process. Yet the Sixth
Circuit turned a blind eye toward the different standards
that apply in the two contexts. OSHA’s lack of statutory
authority to issue the ETS means that Applicants are likely
to succeed on their challenges. Thus, the Court should stay
the ETS pending final disposition of the parties’
challenges.
II. THE COURT SHOULD GRANT CERTIORARI BEFORE
JUDGMENT.
Just two months ago, the Court granted certiorari
before judgment in two cases. See Whole Woman’s Health
v. Jackson, 2021 WL 4928617 (U.S. Oct. 22, 2021) (per
curiam); United States v. Texas, 142 S. Ct. 14, 14 (2021) (per
curiam). The Court then set an expedited briefing schedule
unseen in over twenty years. Only seven weeks after
granting certiorari before judgment, the Court largely
affirmed the Fifth Circuit in one case and dismissed as
improvidently granted the other. See Whole Woman’s
Health v. Jackson, 2021 WL 5855551 (U.S. Dec. 10, 2021);
United States v. Texas, 2021 WL 5855550 (U.S. Dec. 10,
2021) (per curiam).
The Court granted certiorari before judgment despite
no real deadline to act and knowing that the Fifth Circuit
got it mostly right. The Texas law at issue in the two cases
was in effect when certiorari was granted and remains in
effect today. There was no sunset provision that ensured
the case would go away at the end of the year requiring the
Court’s immediate attention.
But here the situation is much more dire. The ETS can
last only six months. See 29 U.S.C. § 655(c)(3). That means
if the Court lets the case run its normal course, by the time
this Court could rule on a certiorari petition the case
would become moot. In other words, there is a ticking
clock in this case. If the Court does not act now and grant
certiorari before judgment, it will lose the chance to decide
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important questions about our government’s structure
and OSHA’s authority over the economy.
That’s not all. The Sixth Circuit’s decision is grievously
wrong. As explained in all eight applications, the dissents
from denial of initial hearing en banc, the panel dissent,
and the Fifth Circuit panel’s majority opinion, there are
both statutory and constitutional problems with the ETS.
So unlike the two cases the Court agreed to hear in
October, there is little chance that the Court would leave
the Sixth Circuit’s decision in place if it considered the
merits of the challenges to the ETS. Rather, it is far more
likely that the Court would reverse and find that the ETS
does not comply with the U.S. Code or Constitution.
* * *
The ticking clock is one reason that the Court has the
certiorari before judgment process. In some rare cases,
two circuit judges, who disagree with most circuit judges
to consider the question, can act as a court of last resort.
The Founding Fathers set up the Judiciary to have one
Supreme Court—this Court. The only way the Court can
fulfill this duty is to grant certiorari before judgment and
decide the important issues presented.
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CONCLUSION
The Court should stay the ETS and grant certiorari
before judgment.
Respectfully submitted,

John M. Masslon II
Counsel of Record
Cory L. Andrews
WASHINGTON LEGAL FOUNDATION
2009 Massachusetts Ave. NW
Washington, DC 20036
(202) 588-0302
jmasslon@wlf.org

DECEMBER 2021

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