Court filing
Application - Scotus
The only filing in Scotus in the archive.
What This Document Is
This is the State Applicants' (led by Ohio) reply brief, filed January 3, 2022, in support of their emergency stay application and alternative petition for certiorari before judgment against the OSHA vaccine-or-testing ETS, filed alongside but distinct from the Business Associations' reply (21A244_065).
Factual Summary
The States renew their request for an administrative stay, noting OSHA gave states with approved State Plans until November 20, 2021 to respond to the ETS, extended for at least one state (Iowa) to January 7, 2022 — the date of oral argument — creating pressure to rule before that deadline. The brief's central arguments: COVID-19 is not an "occupational danger" of the kind OSHA may regulate under the OSH Act, citing CDC COVID Data Tracker figures and a September 2021 MMWR report on case/hospitalization/death rates by vaccination status; COVID-19 does not meet the statute's "grave danger" threshold; the ETS fails the Act's "necessity" requirement given the government's own delay in acting; the standard is not a genuinely "temporary" response to an "emergency"; and the major-questions doctrine, federalism canon, and constitutional-avoidance canon all favor the States' narrower reading of OSHA's authority (citing Alabama Ass'n of Realtors v. HHS, West Virginia v. EPA). The brief expressly states the States "share OSHA's 'strong interest in combatting the spread' of a virus that has prematurely ended over three-quarters of a million American lives," framing its challenge as statutory/constitutional-authority-based rather than disputing the pandemic's severity.
Key Facts
- Filed January 3, 2022 by Ohio and co-plaintiff State Applicants, led by Ohio Solicitor General Benjamin M. Flowers.
- Central arguments: COVID-19 is not an "occupational danger" OSHA may regulate; the ETS fails the OSH Act's "necessity" and "temporary" requirements; the major-questions doctrine requires clear congressional authorization the Act does not provide.
- Explicitly shares OSHA's stated interest in combating COVID-19's severity (citing the same three-quarters-of-a-million-deaths figure), distinguishing its posture from science-disputing amici elsewhere in this docket.
- Cites CDC COVID Data Tracker and MMWR vaccination-status case data as sourcing for its risk-characterization arguments.
Source Caveats
- Use the linked source file for exact quotations, page references, signatures, attachments, and any redacted or sealed material.
Full text
Nos. 21A244, 21A247
In the Supreme Court of the United States
___________________________________
NATIONAL FEDERATION OF INDEPENDENT BUSINESS, ET AL.
Applicants
v.
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET AL.
Respondents
_______________________________________________________
OHIO, ET AL.
Applicants
v.
DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND
HEALTH ADMINISTRATION, ET AL.
Respondents
_______________________________________________________
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
_____________________________________________________
STATE APPLICANTS’ REPLY IN SUPPORT OF EMERGENCY
APPLICATION FOR AN ADMINISTRATIVE STAY AND STAY OF
ADMINISTRATIVE ACTION, AND ALTERNATIVE PETITION FOR WRIT
OF CERTIORARI BEFORE JUDGMENT
_______________________________________________________
MAY MAILMAN DAVE YOST
MATHURA SRIDHARAN Attorney General of Ohio
JOHN ROCKENBACH
Deputy Solicitors General BENJAMIN M. FLOWERS*
30 E. Broad St., 17th Floor * Counsel of Record
Columbus, OH 43215 Solicitor General
30 E. Broad St., 17th Floor
Columbus, OH 43215
(614) 466-8980
bflowers@OhioAGO.gov
Counsel for the State of Ohio
(Additional counsel listed after signature block)
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .......................................................................................... ii
REPLY ............................................................................................................................ 1
I. The States renew their request for an administrative stay......................... 1
II. The Court should stay the Vaccine Mandate pending disposition of the
petitions for review ........................................................................................ 2
A. The States and other applicants will prevail on the merits ................... 2
1. COVID-19 is not an occupational danger that OSHA may
regulate................................................................................................ 4
2. COVID-19 does not present the type of “grave” danger that the
statute requires ................................................................................... 7
3. The Vaccine Mandate does not satisfy the Emergency Provision’s
necessity requirement ....................................................................... 13
4. The challenged standard is not a “temporary” response to an
“emergency” ....................................................................................... 18
5. The major-questions doctrine, the federalism canon, and the
constitutional-doubt canon require the States’ reading .................. 19
B. The remaining factors support the entry of a stay ............................... 26
III. In the alternative, the Court could grant certiorari before judgment ....... 29
CONCLUSION............................................................................................................. 30
i
TABLE OF AUTHORITIES
Cases Page(s)
Abbott v. Perez,
138 S. Ct. 2305 (2018) ............................................................................................ 27
Alabama Ass’n of Realtors v. Dep’t of Health & Hum. Servs.,
141 S. Ct. 2320 (2021) ............................................................................................ 28
Alabama Ass’n of Realtors v. Dep’t of Health & Hum. Servs.,
141 S. Ct. 2485 (2021) ............................................................................ 1, 21, 22, 28
Asbestos Info. Ass’n v. OSHA,
727 F.2d 415 (5th Cir. 1984) ............................................................................ 12, 15
BST Holdings, L.L.C. v. OSHA,
17 F.4th 604 (5th Cir. 2021) ............................................................................. 14, 20
Clark v. Martinez,
543 U.S. 371 (2005) ................................................................................................ 22
Dep’t of Commerce v. New York,
139 S. Ct. 2551 (2019) ............................................................................................ 10
Descamps v. United States,
570 U.S. 254 (2013) ............................................................................................ 8, 26
Downes v. Bidwell,
182 U.S. 244 (1901) .................................................................................................. 1
Dry Color Mfrs. Ass’n, Inc. v. Dep’t of Labor,
486 F.2d 98 (3d Cir. 1973) ................................................................................ 14, 15
Forging Indus. Ass’n v. Sec’y of Labor,
773 F.2d 1436 (4th Cir. 1985) (en banc) .................................................................. 6
Gov’t of Manitoba v. Bernhardt,
923 F.3d 173 (D.C. Cir. 2019) ................................................................................ 25
Gundy v. United States,
139 S. Ct. 2116 (2019) ............................................................................................ 24
Hill v. Colorado,
530 U.S. 703 (2000) ................................................................................................ 16
ii
Marbury v. Madison,
1 Cranch 137 (1803) ............................................................................................... 30
Maryland v. King,
567 U.S. 1301 (2012) .............................................................................................. 27
Munaf v. Geren,
553 U.S. 674 (2008) ................................................................................................ 30
NFIB v. Sebelius,
567 U.S. 519 (2012) .......................................................................................... 23, 24
Nken v. Holder,
556 U.S. 418 (2009) ............................................................................................ 2, 28
Roman Catholic Diocese of Brooklyn v. Cuomo,
141 S. Ct. 63 (2020) .............................................................................................. 1, 2
SEC v. Chenery Corp.,
318 U.S. 80 (1943) ............................................................................................ 13, 15
Sullivan v. Finkelstein,
496 U.S. 617 (1990) ................................................................................................ 20
Taylor Diving & Salvage Co. v. Dep’t of Labor,
537 F.2d 819 (5th Cir. 1976) .................................................................................. 27
West Virginia v. EPA,
577 U.S. 1126 (2016) .......................................................................................... 2, 30
Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008) .................................................................................................... 30
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952) .................................................................................................. 1
Statutes
5 U.S.C. §551 ................................................................................................................ 25
29 U.S.C. §652 ............................................................................................ 13, 17, 25, 26
29 U.S.C. §655 .......................................................................................................passim
29 U.S.C. §667 ................................................................................................................ 1
29 U.S.C. §669 .............................................................................................................. 20
iii
Fla. Stat. §381.00317 ................................................................................................... 26
Idaho Code Ann. §39-9003........................................................................................... 26
Ind. Code §22-8-1.1-16.2 .............................................................................................. 26
Mont. Code Ann. §49-2-312 ......................................................................................... 26
Tenn. Code Ann. §14-2-102 ......................................................................................... 26
W. Va. Code §16-3-4b ................................................................................................... 26
Other Authorities
86 Fed. Reg. 61402-01 (Nov. 5, 2021) ...................................................................passim
BST Holdings, L.L.C. v. OSHA, No. 21-60845 (5th Cir.), Mtn. for Stay
by Texas, et al. ........................................................................................................ 27
CDC, CDC Updates and Shortens Recommended Isolation and
Quarantine Period for General Population (Dec. 27, 2021) ............................ 10, 11
CDC, COVID Data Tracker ..................................................................................... 9, 10
CDC, Preventing Homicide in the Workplace, National Institute for
Occupational Safety and Health (June 6, 2014)...................................................... 5
Heather M. Scobie, et al., Monitoring Incidence of COVID–19 Cases,
Hospitalizations, and Deaths, by Vaccination Status—13 U.S.
Jurisdictions, April 4–July 17, 2021, MMWR Morb Mortal Wkly
Rep 2021 (September 17, 2021) ............................................................................... 9
In re: MCP No. 165, No. 21-7000 (6th Cir.), Mtn. for Stay by Florida, et
al.............................................................................................................................. 27
OSHA, Statement on the Status of the OSHA COVID-19 Healthcare
ETS (Dec. 27, 2021) .......................................................................................... 11, 28
Scalia & Garner, Reading Law §35 (2012) ................................................................. 18
iv
REPLY
Cicero famously observed that, in times of war, the laws fall silent. Perhaps
that was true of the Roman system. It is not true of ours. In “our system,” the gov-
ernment may not “act unlawfully” even in extraordinary times. Alabama Ass’n of
Realtors v. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485, 2490 (2021) (per curiam).
Some of this Court’s most significant rulings respect that principle. See, e.g., Youngs-
town Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). “Things never go well” when
the courts fail to do so. Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63,
71 (2020) (Gorsuch, J., concurring).
The States share OSHA’s “‘strong interest in combatting the spread’ of a virus
that has prematurely ended over three-quarters of a million American lives.” App.B-
8 (Sutton, C.J., dissenting from the denial of initial hearing en banc) (quoting Real-
tors, 141 S. Ct. at 2490). But federal agencies cannot bend the law to pursue whatever
means they think will most effectively bring about a worthy end. No doubt, courts
must leave policymaking to policymakers. It is, however, emphatically the province
of the judiciary to make clear that the law is “not to be obeyed or disobeyed as the
circumstances of a particular crisis … may suggest.” Downes v. Bidwell, 182 U.S.
244, 384 (1901) (Harlan, J., dissenting). The Court should stay the Vaccine Mandate
to make that clear.
I. The States renew their request for an administrative stay
Many of the State applicants have adopted State Plans under 29 U.S.C. §667.
See COVID-19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed.
Reg. 61402-01, 61506 (Nov. 5, 2021). The Vaccine Mandate requires these States to
1
“notify Federal OSHA” regarding how and whether they will update their plans in
response to the Vaccine Mandate. Id. OSHA initially gave the States until November
20, 2021, to make a decision. That deadline passed while the Fifth Circuit’s stay was
in place. After the Sixth Circuit dissolved that stay, at least one applicant State
(Iowa) received notice from OSHA that the agency was extending the deadline only
until January 7—the day the Court will hear argument in these cases. To spare the
States from having to respond to OSHA (or face the consequences of failing to do so)
before this Court can rule, the States respectfully renew their request for an imme-
diate administrative stay.
II. The Court should stay the Vaccine Mandate pending disposition of the
petitions for review
All four of the factors governing the question whether to enter a stay, see Nken
v. Holder, 556 U.S. 418, 434 (2009), favor awarding one here. OSHA insists that the
injunction-pending-appeal standard should govern. That is wrong. This Court has
previously “stayed” illegal agency actions “pending disposition of … petitions for re-
view.” West Virginia v. EPA, 577 U.S. 1126 (2016) (emphasis added). Regardless, the
standards differ only in that applicants seeking an injunction must “clearly estab-
lish[] their entitlement to relief.” Roman Catholic Diocese, 141 S. Ct. at 66. The
various applicants easily clear even that higher hurdle.
A. The States and other applicants will prevail on the merits
OSHA may bypass the notice-and-comment process, and issue an “emergency
temporary standard,” if the Secretary of Labor determines: “(A) that employees are
exposed to grave danger from exposure to substances or agents determined to be toxic
2
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). This stat-
ute—the “Emergency Provision”—gave OSHA no authority to issue the Vaccine Man-
date. First, COVID-19 is not (for most employees) an occupational danger that OSHA
may regulate. Second, even according to OSHA’s own reasoning, COVID-19 does not
present a “grave” danger for many employees subject to the Mandate. Third, the
Vaccine Mandate does not satisfy the Emergency Provision’s necessity requirement.
Fourth, the challenged standard is not a “temporary” response to an “emergency.”
Finally, three interpretive principles—the major-questions doctrine, the federalism
canon, and the constitutional-doubt canon—resolve any doubts in the States’ favor.
OSHA agrees that it can regulate only “work-related dangers.” Response in
Opposition (“Resp.”) at 45 (quoting States’ Stay Application at 9). But it defines that
concept to include every hazard one might encounter at work, including dangers fairly
characterized as “hazard[s] of life”—hazards that arise out of typical human interac-
tion and human existence generally. App.B-37–38 (Bush, J., dissenting from the de-
nial of initial hearing en banc). OSHA then defines “necessary,” Resp.44 (quotation
omitted), to mean “useful,” defines “grave danger” to encompass every risk that is
capable of causing death and that the Secretary chooses to regulate, Resp.23–30, and
insists that emergency temporary standards may require permanent abatement
measures, Resp.54. The result? A nearly limitless delegation of authority to require
any precaution that OSHA thinks will help protect employees from any hazard capa-
ble of causing death or serious injury—without notice-and-comment or any other
3
rigorous standard-setting process. That is not what the Emergency Provision means.
If it were, the law would be unconstitutional.
1. COVID-19 is not an occupational danger that OSHA may
regulate
a. The “Occupational Safety and Health Act gives the Secretary power to ad-
dress only occupational health and safety risks.” App.B-6 (Sutton, C.J., dissenting
from the denial of initial hearing en banc); accord App.A-49 (Larsen, J., dissenting).
It does not extend to other risks. The Emergency Provision—part of that Act—con-
tains precisely the same limitation. It applies when “employees are exposed to grave
danger,” and empowers OSHA to issue standards “necessary to protect employees
from” such dangers. §655(c) (emphasis added). Every ordinary English speaker
would understand this employee-centric language as empowering OSHA to regulate
“workplace hazards with workplace solutions.” App.A-51 (Larsen, J., dissenting).
The language would not be understood as empowering OSHA to regulate endemic
diseases, violent crime, ambient air quality, or any other dangers that cannot fairly
be characterized as work-related.
b. OSHA concedes that it may regulate only “work-related dangers.” Resp.45
(quotation omitted). (Given that concession, OSHA’s attempt to characterize the ar-
gument as “non-textual,” Resp.44, is hard to understand.) So the question becomes:
What makes a danger “work-related” in the relevant sense?
The States have an answer: a work-related danger is a danger “that arise[s]
directly out of the workplace.” App.B-15 (Sutton, C.J., dissenting from the denial of
initial hearing en banc). That generally excludes risks that arise out of routine
4
human interaction as opposed to work or the workplace—risks like COVID-19 and
violent crime. And it generally excludes other risks that we face by virtue of living
on Earth in the present day—risks like exposure to community-wide air pollution.
The qualifier “generally” is necessary because, for some employees at some work-
places, work might create a risk from these dangers distinct from the risk inherent
in interacting with people or existing on the planet. For example, a researcher who
works with SARS-CoV-2 could plausibly describe COVID-19 as a workplace-related
danger—a danger arising directly out of the workplace. A lawyer or chef or carpenter
could not.
If common risks of life were workplace risks for all employees simply because
they might also present themselves at work, what would be the limiting principle?
Homicide is a danger one might confront anywhere, including at work. See CDC,
Preventing Homicide in the Workplace, National Institute for Occupational Safety and
Health (June 6, 2014), https://perma.cc/G3R3-JPZQ. May OSHA mandate that all
employers take steps to decrease the risk of violence? Could it force all employers to
hire armed guards? Could it issue “workplace” regulations preempting state laws
(and overriding company policies) that forbid or permit carrying a gun at work?
OSHA refuses to engage with the inquiry. Resp.47–48.
When the scope of OSHA’s workplace-related authority is properly defined, the
Vaccine Mandate is blatantly illegal. The Mandate acknowledges that the risk of
contracting COVID-19 is inherent in human interaction. To quote the rule itself,
COVID-19 is a workplace risk because the virus is transmitted through routine
5
human interaction and “workplaces … are areas where multiple people come into
contact with one another, often for extended periods of time.” 86 Fed. Reg. at 61411.
Thus, the danger arises not from work, but from routine human interaction. And so
it is not work-related.
Instead of addressing the States’ argument or offering a limiting principle,
OSHA knocks down straw men. It accuses the States of arguing that “OSHA is pow-
erless to address” COVID-19 because it “is not uniquely a workplace danger” or more
likely to occur there. Resp.45. As just explained, that is not the States’ argument—
nor was it an argument that Chief Judge Sutton (joined by seven of his colleagues) or
Judge Larsen raised in their opinions below. OSHA may certainly regulate hazards
(like the risk of fire or the risk of bacterial infection or the danger from nonfunctioning
toilets, Resp.48) that occur both at work and outside of work. See Forging Indus.
Ass’n v. Sec’y of Labor, 773 F.2d 1436, 1444 (4th Cir. 1985) (en banc). But it may
regulate those risks only insofar as they “arise directly out of the workplace.” App.B-
15 (Sutton, C.J., dissenting from the denial of initial hearing en banc); see also Forg-
ing, 773 F.2d at 1443–44. That means OSHA has no power to regulate risks that are
more fairly characterized as “hazard[s] of life.” App.B-37–38 (Bush, J., dissenting
from the denial of initial hearing en banc). OSHA never responds to that argument.
Finally, OSHA dedicates substantial effort to arguing that SARS-CoV-2 is an
“agent” or “substance,” and that COVID-19 is a “hazard.” Resp.17–23. Again, the
States are not disputing this. See States’ Stay Application at 12. They instead argue
that OSHA can regulate agents, substances, and hazards only insofar as they
6
constitute a work-related threat. For the vast majority of workers subject to the Man-
date, neither SARS-CoV-2 nor COVID-19 qualify.
2. COVID-19 does not present the type of “grave” danger that
the statute requires
a. Every danger is dangerous. So when the Emergency Provision speaks of
grave dangers, it must mean particularly serious dangers. States’ Stay Application
at 14–15. To qualify as “grave,” the danger in question must pose “a risk of ‘incurable,
permanent, or fatal consequences to workers.’” App.A-48 (Larsen, J., dissenting)
(quoting Fla. Peach Growers Ass’n, Inc. v. U.S. Dep’t of Labor, 489 F.2d 120, 132 (5th
Cir. 1974)). There must also be a sufficiently high likelihood that those consequences
will occur. To illustrate, consider that plane crashes threaten near-certain death.
But given the vanishingly low odds of crashing, passengers face little risk, let alone
a grave risk. A grave risk entails a potentially serious consequence and a serious
likelihood of the consequence’s occurring. Cf. App.A-48–49 (Larsen, J., dissenting).
For at least two reasons, OSHA has not shown that the disease constitutes a
“grave” danger for many of the employees it covers. (Those so inclined can view this
as an argument regarding whether the Mandate is “necessary”—after all, it is unnec-
essary for the Mandate to cover individuals who are not in “grave danger.”) First,
OSHA’s own data show that COVID-19 poses no “grave” risk, even on OSHA’s inter-
pretation of that phrase, to significant numbers of American workers. Remember,
OSHA says that no vaccinated workers are in grave danger from COVID-19. See 86
Fed. Reg. at 61434. But research OSHA cited suggests that vaccinated and unvac-
cinated workers are unlikely to be admitted to an intensive care unit or die because
7
of COVID-19, even if they contract it. States’ Stay Application at 15. Perhaps more
important, the government’s own data show that younger, unvaccinated people face
risks that are roughly identical to older, vaccinated workers. States’ Stay Application
at 15–16; App.A-49 (Larsen, J., dissenting). “So an unvaccinated 18-year-old bears
the same risk as a vaccinated 50-year-old. And yet,” according to OSHA, “the 18-
year-old is in grave danger, while the 50-year-old is not. One of these conclusions
must be wrong; either way is a problem for OSHA’s rule.” App.A-49 (Larsen, J., dis-
senting).
Second, OSHA tried to gerrymander its way to a “grave danger” finding. The
agency supported its “grave danger” finding by noting that unvaccinated individuals
face a grave risk. But again, it conceded that vaccinated workers face no grave risk.
If the agency can declare a grave danger based exclusively on a particular at-risk
group, then the “grave danger” requirement will no longer do much work. After all,
even many overwhelmingly safe substances, like peanut butter and latex, present an
especially high risk to some subset of individuals. See States’ Stay Application at 16–
17.
b. OSHA responds by not responding. It never addresses the gerrymandering
problem at all, forfeiting any right to do so. See Descamps v. United States, 570 U.S.
254, 277 n.6 (2013). And its response to the first problem consists of obfuscation.
Over the course of several pages, it cites data showing that COVID-19 causes unac-
ceptably high hospitalization and death rates for “working age Americans (18-64
years old),” Resp.25 (emphasis added, quotation omitted), and that COVID-19 is far
8
more dangerous to unvaccinated workers than to their vaccinated peers, Resp.38–40.
But the data fail to address the fact that the risk to young, unvaccinated employees
is roughly equivalent to the risk faced by older, vaccinated employees.
Indeed, some of the very studies on which OSHA relies hammer home the
point. One study, cited in both OSHA’s response and the Vaccine Mandate, see 86
Fed. Reg. at 61418; Resp.39, found that a vaccinated person, 65 or older, was twice
as likely to die of COVID-19 relative to a not-fully-vaccinated individual in the 18-to-
49 age cohort. Heather M. Scobie, et al., Monitoring Incidence of COVID–19 Cases,
Hospitalizations, and Deaths, by Vaccination Status—13 U.S. Jurisdictions, April 4–
July 17, 2021, MMWR Morb Mortal Wkly Rep 2021, at 1287 Table (September 17,
2021), https://perma.cc/NEB9-BABU (comparing incidence rates of death of 0.4 and
0.5 per 100,000 in vaccinated persons, 65 and older, to 0.2 and 0.2 in not-fully-vac-
cinated 18-to-49-year-olds in the April 4–June 19, 2021 and June 20–July 17, 2021
time periods, respectively).
The CDC’s own data reveal similar problems. Take the last week of October,
for instance, from which OSHA’s brief cherry-picks certain comparative metrics. Alt-
hough OSHA compares the death rate in unvaccinated 18-to-29-year-olds to the rate
among their vaccinated peers, it compares the death rate in the unvaccinated 30-to-
49 age bracket with that of vaccinated 50-to-64-year-olds. Resp.39–40. Those very
metrics, presented fairly, paint a different picture. Unvaccinated 18-to-29-year-olds
were about as likely to die from COVID-19 as vaccinated 50-to-64-year-olds and five
times less likely to die than vaccinated individuals between the ages of 65 and 79.
9
CDC, COVID Data Tracker, go.usa.gov/xt3kf (for the week ending Oct. 30, 2021,
death rate per 100,000 by age group was 0.17 for unvaccinated 18-to-29-year-olds,
0.20 for vaccinated 50-to-64-year-olds, and 1.00 for vaccinated 65-to-79-year-olds).
That same week, unvaccinated 18-to-49-year-olds were about as likely (at just 1.3
times the likelihood) to be hospitalized as vaccinated persons 65 and older. CDC,
COVID Data Tracker, go.usa.gov/xt3km (for the week ending Oct. 30, 2021, hospital-
ization rate per 100,000 by age group was 17 for unvaccinated 18-to-49-year-olds, and
12.7 for the vaccinated 65-and-over age cohort).
To be clear, the States are not gainsaying the dangerous and potentially fatal
nature of COVID-19. Their point is that a finding of “grave danger” for employees as
a whole is irreconcilable with OSHA’s own definition of “grave danger,” which ex-
cludes older, vaccinated individuals while including younger, unvaccinated individu-
als who face roughly equivalent risks. In other words, OSHA determined that equiv-
alent risks are both grave and not grave. This is a “problem” for OSHA under any
standard of review. App.A-49 (Larsen, J., dissenting).
What is more, the government’s statements continue to be “incongruent with”
its actions. Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2575 (2019). For exam-
ple, the CDC is now advising that fully vaccinated employees who contract COVID-
19 can return to work after five days of isolation without regard to whether they are
still testing positive. See CDC, CDC Updates and Shortens Recommended Isolation
and Quarantine Period for General Population (Dec. 27, 2021), https://perma.cc/C722-
PMTH. And on December 27, OSHA decided to withdraw the emergency temporary
10
standard applicable to healthcare workers instead of completing a final rule in the
“timeframe … contemplated by the OSH Act.” OSHA, Statement on the Status of the
OSHA COVID-19 Healthcare ETS (Dec. 27, 2021), https://perma.cc/F9V7-BQVG. If
all unvaccinated workers faced a grave risk demanding swift action, both decisions
would be unconscionable.
In truth, OSHA’s actions have been inconsistent with the presence of a truly
grave danger from the outset. See App.B-27–28 (Sutton, C.J., dissenting from the
denial of initial hearing en banc). By the time OSHA acted, Americans had access to
vaccines for nearly a year, better therapeutics than ever before, and a great deal of
experience with the virus. Id. at B-22. OSHA responds by noting that “[d]angers can
evolve.” Resp.28. True enough, but the changed circumstances OSHA cites lessened
the danger. As it notes, vaccines became more “widely available.” Resp.29. And the
FDA “granted approval (rather than the earlier Emergency Use Authorization) to one
vaccine in August 2021.” Resp.29–30. Finally, testing became more readily available.
Resp.30. The fact that OSHA waited until after testing was widely available makes
its delay even harder to explain. If, as OSHA candidly acknowledges, the goal of the
Mandate is to encourage vaccination, see 86 Fed. Reg. at 61435–36, it would have
been even more effective at achieving its goal when testing was harder to secure.
When OSHA eventually acted, it did so only with respect to employers with
100 or more employees. (Independent contractors that work with a business do not
count as its employees. See 86 Fed. Reg. at 61513.) Individuals who work for smaller
businesses are not covered by the Mandate. OSHA claims to have been “concerned
11
about imposing administrative burdens on smaller companies.” App.B-27 (Sutton,
C.J., dissenting from the denial of initial hearing en banc). But consider “how that
argument would fare in another context.” Id. “If the Secretary suddenly realized
that exposure to a new chemical created a ‘grave’ danger of cancer, it is difficult to
imagine anyone would permit an emergency rule targeting the problem to apply only
to companies with over 100 employees in order to save the other companies money.”
Id. at B-27–28. Indeed, the Emergency Provision says that the Secretary “shall” issue
an emergency temporary standard whenever necessary to protect employees from a
grave danger. 29 U.S.C. §655(c).
OSHA responds that other important laws, like Title VII, also “include exemp-
tions for small employers.” Resp.27. That is irrelevant. The arguments for exempt-
ing small businesses from prohibitions on workplace discrimination, whatever their
merits, have little purchase when it comes to laws, like the Emergency Provision,
aimed at protecting employees from long-lasting, incurable, or fatal injuries.
OSHA suggests that the States and other applicants are exhibiting callousness
toward the far-too-many Americans who lost their lives or loved ones to COVID-19.
Resp.24–25. But it would seem far more callous for OSHA to refuse to take and to
delay in taking actions that it believes are within its power and capable of saving
thousands of lives. And if OSHA’s statements regarding grave risks are to be be-
lieved, it failed to act for an inexplicably long time. This “failure to act” is “evidence
that” there is no “true emergency.” Asbestos Info. Ass’n v. OSHA, 727 F.2d 415, 423
(5th Cir. 1984).
12
3. The Vaccine Mandate does not satisfy the Emergency
Provision’s necessity requirement
a. An emergency temporary standard is legal only if it is “necessary.” 29
U.S.C. §655(c)(1). “Sometimes, ‘necessary’ means simply ‘useful.’” App.A-44 (Larsen,
J., dissenting) (quoting Necessary, Black’s Law Dictionary (5th ed. 1979)). “At other
times, though, ‘necessary’ means ‘indispensable.’” Id. (quoting American Heritage
Dictionary of the English Language 877 (1976)). In the Emergency Provision, the
word bears only this second sense. The standard governing non-emergency OSHA
regulations requires OSHA to show that its standards are “reasonably necessary or
appropriate.” 29 U.S.C. §652(8). Congress’s decision to drop “reasonably” and “ap-
propriate” from the Emergency Provision shows that emergency temporary standards
must be “necessary” in the “indispensable” sense. App.A-44 (Larsen, J., dissenting).
What is more, with the Emergency Provision, “Congress ‘narrowly circumscribed’”
OSHA’s “authority to issue emergency standards.” Id. (quoting Indus. Union Dep’t,
AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 651 (1980) (plurality)). In “this con-
text especially, ‘necessary’ must be read as a word of limitation, not enlargement.”
Id.
The Vaccine Mandate is not “indispensable” to protecting workers. For one
thing, OSHA has a Chenery problem. It never found that the Mandate was “indis-
pensable,” and courts “cannot uphold a rule based on a finding the agency never
made.” App.A-45 (Larsen, J., dissenting) (citing SEC v. Chenery Corp., 318 U.S. 80,
87 (1943)). Instead, OSHA concluded that the Vaccine Mandate would be effective at
mitigating the risk of COVID-19. See, e.g., 86 Fed. Reg. at 61434–39. But
13
effectiveness does not entail necessity. And OSHA gave no consideration to many
obvious, more-narrowly-tailored approaches to the dangers of COVID-19. App.A-45–
48 (Larsen, J., dissenting); App.B-21 (Sutton, C.J., dissenting from the denial of ini-
tial hearing en banc); BST Holdings, L.L.C. v. OSHA, 17 F.4th 604, 615 (5th Cir.
2021); see also States’ Stay Application at 20–22.
b. To understand OSHA’s position on necessity, one must begin with its defi-
nition of “necessary”—or, more accurately, its failure to offer any clear definition.
While OSHA contests the States’ definition of “necessary,” it does not offer one of its
own. But it appears to embrace the definition of “necessary” under which it means
“useful” or “effective,” Resp.44; see App.A-44 (Larsen, J., dissenting) (quoting Neces-
sary, Black’s Law Dictionary (5th ed. 1979)). That cannot be right, for all the reasons
addressed above.
OSHA does not engage with those reasons. Instead, it contends that emer-
gency temporary standards need not be “finely calibrated to impose the minimum
requirements necessary to protect each and every employee” from grave danger.
Resp.36. But no one is demanding that extreme degree of tailoring. The States, much
like Judge Larsen and Chief Judge Sutton, maintain only that OSHA must “not over-
look … obvious distinctions” that might make a rule’s requirements “appropriate in
one category of cases” but “entirely unnecessary in another.” Dry Color Mfrs. Ass’n,
Inc. v. Dep’t of Labor, 486 F.2d 98, 105 (3d Cir. 1973). In other words, the agency
must consider alternative approaches and justify its decision not to pursue meaning-
fully narrower options. That is how courts have interpreted the word “necessary” for
14
almost fifty years. Id. Courts have even invalidated past emergency temporary
standards on the ground that OSHA failed to pursue less-demanding alternatives for
protecting workers. See Asbestos Info., 727 F.2d at 426–27.
OSHA protests that it would be “anomalous in the context of an emergency
temporary standard” to demand much precision at all, since “the whole point” of the
Emergency Provision “is to allow the agency to act swiftly.” Resp.37. That hardly
follows. Given that emergency temporary standards represent the “most dramatic
weapon” in OSHA’s arsenal, it makes perfect sense that the agency may promulgate
only those rules that are truly “‘necessary’ to achieve the projected benefits.” Asbestos
Info., 727 F.2d at 426. Again, “‘necessary’ must be read as a word of limitation, not
enlargement,” in this context. App.A-44 (Larsen, J., dissenting).
OSHA’s remaining arguments collapse when “necessary” is properly defined.
Start with the Chenery issue. OSHA insists that there is no Chenery problem, quoting
passages from the Vaccine Mandate that describe the Mandate’s terms as “neces-
sary.” Resp.42–43. But look more closely, and none of these passages uses “neces-
sary” in the relevant sense. At least one of the quoted passages finds that “an ETS is
necessary.” 86 Fed. Reg. at 61403 (quoted at Resp.42) (emphasis added). That is
inadequate. The Emergency Provision allows OSHA to issue an emergency tempo-
rary standard only if it finds “that such emergency standard”—in other words, the
actual standard it decides to issue—is necessary. 29 U.S.C. §655(c) (emphasis added);
accord App.A-45 n.4 (Larsen, J., dissenting). Nowhere did OSHA say that the Vaccine
Mandate itself was indispensable to combating the grave danger of COVID-19. It
15
instead found: that it needed to do something to stop workers from being infected
with COVID-19, 86 Fed. Reg. at 61432 (quoted at Resp.43); that “encouraging vac-
cination” would be “the most efficient and effective method for addressing the grave
danger,” 86 Fed. Reg. at 61434 (quoted at Resp.43); that encouraging or mandating
vaccines was “necessary” in the sense of being the “single best method for protecting
an unvaccinated worker from the serious health consequences of a COVID-19 infec-
tion,” id. at 61435 (quoted misleadingly at Resp.43); and that a mask-and-test re-
quirement for unvaccinated workers was “essential” in that it would “further mitigate
the potential for unvaccinated workers to spread the virus at the workplace,” 86 Fed.
Reg. at 61439 (cited at Resp.33). One searches in vain for any rejection of obviously
more tailored options, such as focusing on those most at risk, focusing on industries
where the risk is heightened, and so on. It is hardly surprising that OSHA failed to
consider this. Since OSHA misunderstood “necessary” to mean “useful,” it would not
have considered whether the Mandate was indispensable.
OSHA next contends the Vaccine Mandate actually is tailored, since it “does
not apply to employees who work exclusively at home, alone, or outdoors.” Resp.35
(emphasis added). These exemptions will cover very few employees. By OSHA’s own
estimates, only 9 percent of landscapers and 5 percent of highway-maintenance work-
ers would qualify. 86 Fed. Reg. at 61461. So when OSHA says it “tailored the” Vac-
cine Mandate, Resp.35, “tailoring must refer not to the standards of Versace, but to
those of Omar the tentmaker.” Hill v. Colorado, 530 U.S. 703, 749 (2000) (Scalia, J.,
dissenting).
16
Regardless, these exemptions do nothing to address the most obvious of all
distinctions that the Vaccine Mandate ignores: the different risks faced by employees
of different ages, see above 7–13, and the different risks presented by different work
settings. See App.B-20–21 (Sutton, C.J., dissenting from the denial of initial hearing
en banc). The fact that “employees can be exposed to the virus in almost any work
setting,” Resp.41 (quoting 86 Fed. Reg. at 61411) (emphasis added), hardly suggests
that all industries and worksites pose comparable risks. Regarding its failure to draw
age-based distinctions, OSHA claims that it “adopted the Standard in significant part
to prevent employees from transmitting the virus to other employees—a risk pre-
sented by younger and older transmitters alike.” Resp.40. But that cannot support
the necessity finding, because OSHA concluded that those who are vaccinated face no
grave risk at all. See 86 Fed. Reg. at 61434. Thus, preventing young-to-old transmis-
sion is not “necessary” to abate a grave risk according to OSHA itself: everyone who
wants a vaccine can get one for free and avoid any grave risk.
Finally, OSHA’s misunderstanding of “necessary” also leads it to misunder-
stand the States’ argument that the Mandate could not have been necessary to protect
workers since any workers who wanted a vaccine could obtain one for free. OSHA
responds that its standards “routinely require the use of protective controls even if
employees would prefer not to be subject to particular health or safety measures.”
Resp.52. But those standards are permanent standards, and permanent standards,
unlike emergency temporary standards, need not be “necessary”—they need only to
be “reasonably necessary or appropriate.” 29 U.S.C. §652(8). Making employees take
17
precautions they prefer not to take may be reasonably necessary or appropriate for
ensuring employee safety. It is not generally, however, “indispensable” to protecting
them.
4. The challenged standard is not a “temporary” response to
an “emergency”
a. The Mandate does not qualify as a “temporary” standard, and it was not
issued in response to an “emergency” in the relevant sense. See App.B-21–23 (Sutton,
C.J., dissenting from the denial of initial hearing en banc); see also App.A-51 (Larsen,
J., dissenting). The lack of any emergency follows from the fact that nothing suddenly
happened on November 5, 2021, to necessitate the Vaccine Mandate. Indeed, because
OSHA concedes that vaccines eliminate any grave risk from COVID-19, and because
more people were vaccinated against COVID-19 in November 2021 than ever before,
“fewer people face[d] lethal risks from COVID-19.” App.B-22 (Sutton, C.J., dissenting
from the denial of initial hearing en banc). The measure is not “temporary” in any
relevant sense, either. Because a “vaccine may not be taken off when the workday
ends,” it is permanent in a way that true workplace regulations are not. App.A-51
(Larsen, J., dissenting); accord App.B-22 (Sutton, C.J., dissenting from the denial of
initial hearing en banc).
b. OSHA responds that there is no “freestanding statutory requirement that
the agency find the existence of an ‘emergency.’” Resp.54. And it says that, as long
as the emergency temporary standard is slated to lapse during the six-month period
provided for by 29 U.S.C. §655(c)(2), it is sufficiently “temporary.” Resp.54. But if a
statute’s “title” can be a “permissible indicator[] of meaning,” Scalia & Garner,
18
Reading Law, §35, p.221 (2012), then surely the name of the action the statute au-
thorizes can be, too. Here, the statute authorizes OSHA to set “emergency temporary
standard[s].” §655(c). This suggests that the agency can act only in response to an
emergency. And it certainly suggests that the standard’s effects must be temporary.
After all, if OSHA could demand permanent abatement measures via a temporary
standard, then OSHA could evade the temporal limits that §655(c)(2) places on its
emergency power.
5. The major-questions doctrine, the federalism canon, and
the constitutional-doubt canon require the States’ reading
As the States explained in their application, the major-questions doctrine, the
federalism canon, and the constitutional-doubt canon all require resolving any ambi-
guity in the States’ favor. See States’ Stay Application at 25–31. OSHA’s contrary
arguments are wrong, wrong, and wrong again.
a. Major-questions doctrine
OSHA does not deny, and never has denied, that the question whether to im-
pose the Vaccine Mandate presents a “major question.” It thus (wisely) abandons the
Sixth Circuit’s contrary determination below. See App.A-15–16 (majority op.). Ra-
ther than fighting on this front, OSHA maintains that the Emergency Provision un-
ambiguously empowered it to issue the Vaccine Mandate. See Resp.55. (The same
lack of ambiguity, it claims, prevents the Court from relying on the constitutional-
doubt canon. See Resp.73.) But the foregoing, if nothing else, shows that Congress
stopped well short of clearly empowering OSHA to issue the Vaccine Mandate. And
indeed, the vast majority of judges to have written or joined an opinion in these cases
19
agree with the States’ interpretation. See App.A-39 (Larsen, J., dissenting); App.B-6
(Sutton, C.J., dissenting from the denial of initial hearing en banc); App.B-33 (Bush,
J., dissenting from the denial of initial hearing en banc); BST, 17 F.4th 604.
OSHA’s attempts at showing that Congress clearly empowered the agency to
mandate vaccinations all fall short. First, citing 29 U.S.C. §669(a)(5), OSHA claims
“Congress expressly contemplated that” OSHA could require immunization. Resp.56.
The cited statute does not, however, come close to suggesting that Congress “com-
pleted” OSHA might mandate vaccines for endemic illnesses. It gives another de-
partment—HHS—authority to take actions regarding occupational illnesses. It then
states:
Nothing in this or any other provision of this chapter shall be deemed to
authorize or require medical examination, immunization, or treatment for
those who object thereto on religious grounds, except where such is
necessary for the protection of the health or safety of others.
All this means is that, if some provision empowers the government to require vac-
cinations, it must respect religious objections when exercising that authority. The
question here is whether the Emergency Provision empowers OSHA to mandate
COVID-19 vaccinations. Section 669(a)(5) sheds no light on that question.
March 2021 legislation appropriating money to OSHA so that it may “carry out
COVID-19 related worker protection activities” is equally irrelevant. Resp.56 (cita-
tion omitted). As an initial matter, this legislation did not amend 29 U.S.C. §655. At
most, it reflects Congress’s interpretation of OSHA’s authority. And Congress’s views
concerning the meaning of “a statute already enacted are entitled to no more weight
than the views of a judge concerning a statute not yet passed.” Sullivan v.
20
Finkelstein, 496 U.S. 617, 632 (1990) (Scalia, J., concurring in part). In any event,
this legislation says nothing at all about whether OSHA has authority to mandate
COVID-19 vaccinations. Most important of all, the States are not denying that OSHA
could take some enforcement actions in response to COVID-19. Again, for some jobs,
COVID-19 likely is a work-related risk. Because the States’ position envisions a role
for OSHA in connection with COVID-19, it is consistent with Congress’s appropria-
tions.
Finally, OSHA insists that this Court’s decision in Alabama Realtors has no
bearing on the present matter. Its argument appears to be that the statute in Ala-
bama Realtors had different words. That is true, but irrelevant. The Emergency
Provision fails to clearly authorize the Vaccine Mandate, just as the statute at issue
in Alabama Realtors failed to clearly authorize the eviction moratorium in that case.
And as Judge Larsen noted below, it is “hard to think of a” more on-point precedent
than Alabama Realtors. App.A-54 (Larsen, J., dissenting). The Court there “empha-
sized that the CDC’s moratorium covered ‘80% of the country, including between 6
and 17 million tenants,’ all to ‘combat[ ] the spread of COVID-19.’” Id. (quoting Real-
tors, 141 S. Ct. at 2489–90). In issuing the moratorium, the agency claimed “a power
of ‘vast economic and political significance.’” Id. (quoting Realtors, 141 S. Ct. at 2489–
90). Here, “OSHA’s rule covers two-thirds of the private sector, including 84 million
workers (26 million unvaccinated), also to combat COVID-19.” Id. “If it is not clear
on its face that OSHA’s vaccinate-or-test mandate covering most of the country is
significant, then Alabama Association of Realtors tells us it is.” Id.
21
b. Federalism canon
Congress must “enact exceedingly clear language if it wishes to significantly
alter the balance between federal and state power.” Realtors, 141 S. Ct. at 2489 (quo-
tation omitted). The rule applies here because the OSH Act, if indeed it empowered
OSHA to regulate the private medical decisions of every working American, would
empower OSHA to regulate public health—a matter traditionally reserved to the
States. App.B-14 (Sutton, C.J., dissenting from the denial of initial hearing en banc).
Because the Emergency Provision contains no “exceedingly clear language” effecting
this transfer of authority, it cannot be read to permit the Vaccine Mandate.
OSHA responds, again, by attacking an argument the States did not make. It
seems to think the States’ federalism-canon argument is a Tenth Amendment argu-
ment. Resp.69–70. It is not: the federalism canon is a clear-statement rule, not a
constitutional prohibition on federal intrusion into matters traditionally left to the
States.
c. Constitutional-doubt canon
Statutes should be construed so as to avoid placing their constitutionality in
doubt. See Clark v. Martinez, 543 U.S. 371, 379 (2005). OSHA’s interpretation of the
Emergency Provision does not simply create doubt—it undoubtedly causes the stat-
ute to violate both the Commerce Clause and the nondelegation doctrine. See States’
Stay Application at 28–31. Thus, the Court should either reject this reading or else
hold that the States are likely to prevail on the ground that the Vaccine Mandate was
issued pursuant to an unconstitutional statute.
22
Commerce Clause. The Commerce Clause does not empower Congress to
regulate inactivity—even economic inactivity. See NFIB v. Sebelius, 567 U.S. 519,
557–58 (2012) (op. of Roberts, C.J.). The Vaccine Mandate regulates non-economic
inactivity. It does so by making life difficult for the unvaccinated. Those who refuse
a vaccine must wear masks while working and can be forced to secure and self-finance
weekly testing that may be administered only with the supervision of authorized per-
sons. See 86 Fed. Reg. at 61530–32, 61551–53. The Mandate thus penalizes the
unvaccinated for refusing to engage in the government’s preferred activity (vaccina-
tion). It therefore exceeds the power conferred by the Commerce Clause. NFIB, 567
U.S. at 557–58 (op. of Roberts, C.J.).
OSHA responds that Congress’s authority to regulate interstate commerce al-
lows it to regulate working conditions and employer–employee relationships.
Resp.65–69. That is true, but Congress cannot use its power to regulate working
conditions to circumvent the limits on its powers. For example, Congress cannot,
under the Commerce Clause, require individuals to buy health insurance. NFIB, 567
U.S. at 557–58 (op. of Roberts, C.J.). Could it evade that limit on its authority by
requiring employers to fire anyone who declines to purchase health insurance?
Health insurance surely supports the productivity and safety of the workforce. So
could Congress justify this hypothetical law as nothing more than a regulation of “the
working conditions of employees who produce goods or furnish services to entities
whose activities unquestionably affect interstate commerce”? Resp.69. Could it re-
quire the termination or suspension of employees who refuse to exercise and who are
23
thus more at risk of workplace injuries? It is hard to see a limiting principle for
OSHA’s interpretation of the Commerce Clause.
OSHA also insists that the Vaccine Mandate is actually no mandate at all,
since employees can mask and submit to weekly testing instead of getting a vaccine
(if their employer allows that option). Resp.68. As an initial matter, this let-them-
eat-cake argument betrays tremendous ignorance of the conditions in much of the
country. Even during times when tests are not in short supply, weekly tests (espe-
cially self-financed tests) are not a practical option for many rural and lower-income
workers. See Br. of Amicus Curiae Standard Process Inc. at 6–10; Br. of Amici Curiae
Local Unions 1249 and 97 of the International Brotherhood of Electrical Workers at
8–9. In any event, the option to pursue testing is irrelevant. Those who declined
health insurance in NFIB had the option to pay a fine. 567 U.S. at 557–58, 562–63
(op. of Roberts, C.J.). Putting them to the choice of paying that fine or buying health
insurance did not make the Individual Mandate in NFIB any less a regulation of
inactivity. Similarly, the mask-and-test option does not make the Vaccine Mandate
any less a regulation of inactivity.
Nondelegation doctrine. The Emergency Provision, if it means what the
States say it means, does not violate the nondelegation doctrine as that doctrine ex-
ists today. See Gundy v. United States, 139 S. Ct. 2116, 2123 (2019). The same cannot
be said of OSHA’s interpretation. On OSHA’s understanding: OSHA can issue an
emergency temporary standard in response to any grave danger that an employee
may face at work, regardless of whether the risk has a direct relationship to work;
24
the agency can require any solution that is “useful” for addressing the danger, even
if the solution is permanent, even if the solution will affect employees outside of work,
and even if there are obviously narrower solutions the agency could pursue; and the
Secretary has sole discretion to characterize as “grave” every danger that is capable
of causing death or serious injury. Put all that together, and one gets an almost-
limitless delegation of authority. It would seem that OSHA could, on this interpre-
tation, regulate nearly every potentially fatal risk that people might encounter at
work, as long as the regulation will (in the Secretary’s judgment) prove effective in
limiting the risk.
*
Before turning to the equities, the States pause to refute OSHA’s tepid sugges-
tion that the States may not be “person[s]” entitled to challenge an emergency tem-
porary standard under 29 U.S.C. §655(f). Resp.81 n.14. “Any person” may petition
for review of an emergency temporary standard. §655(f). “Person” means “one or
more individuals, partnerships, associations, corporations, business trusts, legal rep-
resentatives, or any organized group of persons.” §652(4). That broad definition en-
compasses States. Indeed, it is materially identical to the APA’s definition of “per-
son”—“an individual, partnership, corporation, association, or public or private or-
ganization other than an agency,” 5 U.S.C. §551(2)—which everyone agrees includes
the States. Gov’t of Manitoba v. Bernhardt, 923 F.3d 173, 181 (D.C. Cir. 2019). The
neighboring definition for “employer” removes any doubt. The OSH Act defines “em-
ployer” as “a person engaged in a business affecting commerce who has employees,
25
but does not include … any State or political subdivision of a State.” §652(5) (empha-
sis added). There would be no need to exclude government entities from the definition
of “employer” if, as OSHA claims, governments were not “persons.” In any event, as
even OSHA concedes, the presence of so many private applicants means the Court
plainly has jurisdiction to enter a stay. Resp.81 n.14.
B. The remaining factors support the entry of a stay
Irreparable harm. The Vaccine Mandate will irreparably harm the States
by imposing unrecoverable compliance costs on States with OSHA Plans of their own,
by preempting state vaccination policies, and by invading state prerogatives. See
States’ Stay Application at 31–32. OSHA does not dispute the compliance-cost injury,
forfeiting its right to do so. See Descamps, 570 U.S. at 277 n.6. It mischaracterizes
the other injuries as invoking “abstract notions of sovereignty.” Resp.81. But the
States’ interests are quite concrete. The Vaccine Mandate expressly preempts state
laws inconsistent with its terms. See 86 Fed. Reg. at 61437. There are quite a few
such laws. See, e.g., AZ Executive Order 2021-18 (Aug. 16, 2021) (cited by 86 Fed.
Reg. at 61510 n.86); Fla. Stat. §381.00317; Mont. Code Ann. §49-2-312; Idaho Code
Ann. §39-9003; Tenn. Code Ann. §14-2-102; W. Va. Code §16-3-4b; see also Ind. Code
§22-8-1.1-16.2(b) (requiring the State to wait 60 days before updating its State OSHA
Plan to implement new federal rules). The Mandate also overrides policies in States
that have, in the main, let employers decide for themselves what works best for their
businesses and employees. So the States are not appealing to abstract notions of
sovereignty—they are suing to prevent their own already-in-force policies from being
nullified. Interference with the constitutional operation of state law always
26
constitutes an irreparable injury. Maryland v. King, 567 U.S. 1301, 1303 (2012) (Rob-
erts, C.J., in chambers); accord Abbott v. Perez, 138 S. Ct. 2305, 2324 (2018). (The
possibility that individual employers might obtain variances, Resp.34, does not affect
the existence of the harms faced by the States. Indeed, the option to seek a variance
does not bear on the irreparable-harm inquiry even for private employers. See Taylor
Diving & Salvage Co. v. Dep’t of Labor, 537 F.2d 819, 821 (5th Cir. 1976).)
OSHA next cites dicta from one of this Court’s cases for the proposition that a
“State does not have standing as parens patriae to bring an action against the Federal
Government.” Resp.82 (quoting Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S.
592, 610 n.16 (1982)). It is hard to see why. The just-discussed injuries on which the
States rely are injuries to the States themselves—they do not rest on a parens patriae
theory. Further, the States’ standing is not in doubt. In addition to the costs associ-
ated with State Plans and the sovereign injuries discussed above, the States will face
pocketbook harms when more of their citizens seek unemployment benefits after los-
ing their jobs because of the Vaccine Mandate, when tax revenues dip because of the
Mandate, when citizens who opt for the mask-and-test option seek testing provided
for by state programs, and when the increases in testing requests cause at least one
State’s group-health-insurance costs to rise. See, e.g., In re: MCP No. 165, No. 21-
7000 (6th Cir.), Mtn. for Stay by Florida, et al., Doc. 161 at 83, 91–93, 96–97, 107–09,
160, 162–63 (Declarations of Donald, Dorfman, Heckman, Lewandowski, Stokes,
Toomey); BST Holdings, L.L.C. v. OSHA, No. 21-60845 (5th Cir.), Mtn. for Stay by
Texas, et al., Doc. 00516084105 (filed November 7, 2021) at 39, 50 (Exhibits 1 and 4).
27
Remaining factors. The remaining factors—harm to the opposing party and
the public interest—“merge when the Government is the opposing party.” Nken, 556
U.S. at 435. And here, they both support issuance of a stay.
“It is hard to find harm to OSHA from delay, as it waited almost two years
since the pandemic began, and nearly a year after vaccines became publicly available,
to issue the mandate.” App.A-56 (Larsen, J., dissenting). A stay will not cause legally
cognizable harm to anyone else, either. While it is “indisputable that the public has
a strong interest in combating the spread of” COVID-19, “our system does not permit
agencies to act unlawfully even in pursuit of desirable ends.” Realtors, 141 S. Ct. at
2490.
OSHA responds that the Vaccine Mandate will save many lives. Again, its own
actions make that claim hard to buy. If a stay would be so damaging, why did OSHA
wait eleven days to seek dissolution of the Fifth Circuit’s stay in the Sixth Circuit
instead of seeking immediate relief in this Court? And if it is so vital to have federally
imposed workplace protections for individuals who may encounter COVID-19 at
work, what could possibly explain OSHA’s withdrawal of the emergency temporary
standard applicable to healthcare workers? OSHA, Statement, https://perma.cc/F9V7
-BQVG. In any event, the beneficial effects of an unlawful policy do not factor into
the question whether to award a stay. Realtors, 141 S. Ct. at 2490. Upon determining
that a challenged policy is illegal, a court may conclude that the illegal action is best
abated through means other than a stay—through an impending expiration date, for
example. See Alabama Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 141 S. Ct.
28
2320, 2321 (2021) (Kavanaugh, J., concurring). But courts may not, relying on the
equities, allow the government to keep acting illegally simply because they deem the
illegal actions prudent. “[O]nce judges go beyond the modest task of determining
whether statutes permit agency action, these broader considerations become exceed-
ingly complicated—and well beyond [their] ken.” App.B-31 (Sutton, C.J., dissenting
from the denial of initial hearing en banc).
OSHA concludes its equities argument by asking the Court, if it enters a stay,
to stay “only the portion of the ETS concerning a vaccination requirement.” Resp.83.
That is, OSHA asks the Court to “leave in place during the pendency of litigation the
ETS’s requirement that employers implement a policy that requires unvaccinated
employees to mask and test.” Resp.83–84. This plea for tailored relief makes no
sense. Nearly all of the applicants’ various arguments apply with full force to a mask-
and-test mandate: COVID-19 is a non-occupational danger for most employees and
is thus a risk OSHA cannot regulate; the risk is not “grave” for many employees; a
one-size-fits-all policy is not “necessary”; the nondelegation problems remain; and the
narrower remedy still violates the Commerce Clause if (as is presumably the case)
employees would be allowed to take off their masks and cease testing in the event
they obtain a vaccine. Replacing one illegal rule with another is no relief at all.
III. In the alternative, the Court could grant certiorari before judgment
The States’ request for certiorari before judgment is largely moot if this Court
enters a stay. Any such order can make clear that the Vaccine Mandate is illegal and
unenforceable, giving the applicants all the relief they need. As such, there is little
29
need to address OSHA’s argument that, because the Sixth Circuit has not entered
final judgment, the Court lacks jurisdiction to fully resolve this case on the merits
after awarding a writ of certiorari before judgment. Resp.85–86. But that argument
is wrong. Appellate jurisdiction, for constitutional purposes, entails review of a lower
court’s opinion. See Marbury v. Madison, 1 Cranch 137, 175 (1803). Here, the Court’s
appellate jurisdiction unquestionably allows it to review the lower court’s stay-stage
decision. By granting certiorari to address that question, it would be free to award
permanent relief. See Munaf v. Geren, 553 U.S. 674, 691–92 (2008); see also Winter
v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 31 (2008).
CONCLUSION
The Court should immediately enter an administrative stay of the Vaccine
Mandate. And it should stay the Vaccine Mandate’s enforcement “pending disposi-
tion of” the applicants’ “petitions for review.” West Virginia, 577 U.S. at 1126.
30
January 2021 Respectfully submitted,
DANIEL CAMERON DAVE YOST
Attorney General of Kentucky Attorney General of Ohio
VICTOR B. MADDOX BENJAMIN M. FLOWERS*
CHRISTOPHER L. THACKER * Counsel of Record
ALEXANDER Y. MAGERA Solicitor General
JEREMY J. SYLVESTER MATHURA SRIDHARAN
LINDSEY R. KEISER MAY MAILMAN
Office of the Attorney General JOHN ROCKENBACH
700 Capital Avenue, Suite 118 Deputy Solicitors General
Frankfort, Kentucky 40601 30 E. Broad St., 17th Floor
Phone: (502) 696-5300 Columbus, OH 43215
Victor.Maddox@ky.gov Phone: (614) 466-8980
bflowers@OhioAGO.gov
Counsel for the Commonwealth of Ken-
tucky Counsel for the State of Ohio
HERBERT H. SLATERY III JOHN M. O’CONNOR
Attorney General of Tennessee Attorney General of Oklahoma
CLARK L. HILDABRAND MITHUN MANSINGHANI
BRANDON J. SMITH Solicitor General
Office of the Attorney General 313 N.E. 21st St.
and Reporter Oklahoma City, OK
P.O. Box. 20207 Phone: (405) 521-3921
Nashville, Tennessee 37202-0207 Mithun.Mansinghani@oag.ok.gov
Phone: (615) 532-4081
clark.hildabrand@ag.tn.gov Counsel for the State of Oklahoma
Counsel for the State of Tennessee
31
LAWRENCE G. WASDEN PATRICK MORRISEY
Attorney General of Idaho Attorney General of West Virginia
BRIAN KANE LINDSAY S. SEE
Chief Deputy Attorney General Solicitor General
LESLIE M. HAYES MICHAEL WILLIAMS (admitted in Michi-
MEGAN A. LARRONDO gan; practicing under supervision of
Deputy Attorneys General West Virginia attorneys)
700 W. Jefferson Street, Ste. 210 Office of the Attorney General
P.O. Box 83720 State Capitol Complex
Boise, Idaho 83720-0010 Bldg. 1, Room E-26
Phone: (208) 334-2400 Charleston, West Virginia 25305
brian.kane@ag.idaho.gov Phone: (304) 558-2021
Lindsay.S.See@wvago.gov
Counsel for the State of Idaho
Counsel for the State of
West Virginia
DEREK SCHMIDT LYNN FITCH
Attorney General of Kansas Attorney General of Mississippi
JEFFREY A. CHANAY WHITNEY H. LIPSCOMB
Chief Deputy Attorney General Deputy Attorney General
SHANNON GRAMMEL SCOTT G. STEWART
Deputy Solicitor General Solicitor General
120 SW 10th Avenue, 2nd Floor JUSTIN L. MATHENY
Topeka, Kansas 66612 Deputy Solicitor General
Phone: (785) 296-2215 JOHN V. COGHLAN
jeff.chanay@ag.ks.gov Deputy Solicitor General
Mississippi Attorney General’s Office
Counsel for the State of Kansas P.O. Box 220
Jackson, MS 39205
Phone: (601) 359-3680
scott.stewart@ago.ms.gov
Counsel for the State of Mississippi
32
STEVE MARSHALL ERIC S. SCHMITT
Attorney General of Alabama Attorney General of Missouri
EDMUND G. LACOUR JR. D. JOHN SAUER
Solicitor General Solicitor General
THOMAS A. WILSON Office of the Missouri
Deputy Solicitor General Attorney General
State of Alabama Supreme Court Building
Office of the Attorney General P.O. Box 899
501 Washington Ave. Jefferson City, MO 65102
Montgomery, AL 36130 Phone: (573) 751-3321
Phone: (334) 242-7300 John.Sauer@ago.mo.gov
Edmund.LaCour@AlabamaAG.gov
Counsel for the State of Missouri
Counsel for the State of Alabama
TREG R. TAYLOR AUSTIN KNUDSEN
Attorney General of Alaska Attorney General of Montana
KRISTIN HANSEN
CHARLES E. BRASINGTON Lieutenant General
Assistant Attorney General DAVID M.S. DEWHIRST
State of Alaska Solicitor General
1031 West Fourth Avenue, Suite 200 CHRISTIAN B. CORRIGAN
Anchorage, AK 99501 Assistant Solicitor General
Phone: (907) 269-6612 Office of the Attorney General
charles.brasington@alaska.gov 215 North Sanders
P.O. Box 201401
Counsel for the State of Alaska Helena, MT 59620-1401
Phone: (406) 444-2026
David.Dewhirst@mt.gov
Counsel for the State of Montana
33
MARK BRNOVICH DOUGLAS J. PETERSON
Attorney General of Arizona Attorney General of Nebraska
BRUNN W. ROYSDEN IIII JAMES A. CAMPBELL
SOLICITOR GENERAL Solicitor General
DREW C. ENSIGN Office of the Nebraska
Deputy Solicitor General Attorney General
Arizona Attorney General’s Office 2115 State Capitol
2005 N. Central Ave. Lincoln, Nebraska 68509
Phoenix, AZ 85004 Phone: (402) 471-2682
Phone: (602) 542-3333 jim.campbell@nebraska.gov
Drew.ensign@azag.gov
Counsel for the State of Nebraska
Counsel for the State of Arizona
LESLIE RUTLEDGE JOHN M. FORMELLA
Attorney General of Arkansas Attorney General of New Hampshire
NICHOLAS J. BRONNI ANTHONY J. GALDIERI
Solicitor General Solicitor General
VINCENT M. WAGNER New Hampshire Department of Justice
Deputy Solicitor General 33 Capitol Street
Office of the Arkansas Concord, NH 03301
Attorney General Phone: (603) 271-3658
323 Center Street, Suite 200 Anthony.J.Galdieri@doj.nh.gov
Little Rock, Arkansas 72201
Phone: (501) 682-8090 Counsel for the State of New Hampshire
Nicholas.bronni@arkansasag.gov
Counsel for the State of Arkansas
34
ASHLEY MOODY WAYNE STENEHJEM
Attorney General of Florida Attorney General of North Dakota
HENRY C. WHITAKER MATTHEW A. SAGSVEEN
Solicitor General Solicitor General
DANIEL W. BELL Office of Attorney General
Chief Deputy Solicitor General 500 North 9th Street
EVAN EZRAY Bismarck, ND 58501-4509
JASON H. HILBORN Phone: (701) 328-3640
Deputy Solicitors General masagsve@nd.gov
JAMES H. PERCIVAL
Deputy Attorney General of Counsel for the State of North Dakota
Legal Policy
NATALIE P. CHRISTMAS
Assistant Attorney General of
Legal Policy
State of Florida
Office of the Attorney General
The Capitol, Pl-01
Tallahassee, Florida 32399-1050
Phone: (850) 414-3300
Henry.Whitaker@myfloridalegal.com
Counsel for the State of Florida
CHRISTOPHER M. CARR ALAN WILSON
Attorney General of Georgia Attorney General of South Carolina
STEPHEN J. PETRANY ROBERT D. COOK
Solicitor General Solicitor General
ROSS W. BERGETHON J. EMORY SMITH, JR.
DREW F. WALDBESER Deputy Solicitor General
Deputy Solicitors General THOMAS T. HYDRICK
State of Georgia Assistant Deputy Solicitor General
Office of the Attorney General Office of the Attorney General
40 Capitol Square, S.W. Post Office Box 11549
Atlanta, Georgia, 30334 Columbia, South Carolina 29211
Phone: (404) 458-3378 Phone: (803) 734-3680
thomashydrick@scag.gov
Counsel for the State of Georgia
Counsel for the State of South Carolina
35
THEODORE E. ROKITA JASON R. RAVNSBORG
Attorney General of Indiana South Dakota Attorney General
THOMAS M. FISHER
Solicitor General DAVID M. MCVEY
JULIA C. PAYNE Assistant Attorney General
MELINDA R. HOLMES 1302 E. Highway 14, Suite 1
Deputy Attorneys General Pierre, SD 57501-8501
Office of the Indiana Attorney General Phone: (605) 773-3215
IGC South, Fifth Floor david.mcvey@state.sd.us
302 W. Washington Street
Indianapolis, IN 46204 Counsel for the State of South Dakota
Phone: (317) 232-6255
Tom.Fisher@atg.in.gov
Counsel for the State of Indiana
JEFFREY S. THOMPSON KEN PAXTON
Solicitor General of Iowa Attorney General of Texas
SAMUEL P. LANGHOLZ BRENT WEBSTER
Assistant Solicitor General First Assistant Attorney General
Office of the Iowa Attorney General AARON F. REITZ
1305 E. Walnut Street Deputy Attorney General for
Des Moines, Iowa 50319 Legal Strategy
Phone: (515) 281-5164 JUDD E. STONE II
jeffrey.thompson@ag.iowa.gov Solicitor General
LANORA C. PETTIT
Counsel for the State of Iowa Principal Deputy Solicitor General
WILLIAM F. COLE
RYAN S. BAASCH
Assistant Solicitors General
LEIF A. OLSON
Special Counsel
Office of the Attorney General
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Phone: (512) 936-1700
William.Cole@oag.texas.gov
Counsel for the State of Texas
36
JEFF LANDRY SEAN REYES
Attorney General of Louisiana Attorney General
ELIZABETH B. MURRILL MELISSA A. HOLYOAK
Solicitor General Solicitor General
JOSEPH S. ST. JOHN Office of the Attorney General
Deputy Solicitor General 350 N. State Street, Suite 230
JOSIAH KOLLMEYER P.O. Box 142320
Assistant Solicitor General Salt Lake City, UT 84114-2320
MORGAN BRUNGARD Phone: (385) 271-2484
Assistant Solicitor General melissaholyoak@agutah.gov
Louisiana Department of Justice
1885 N. Third Street Counsel for the State of Utah
Baton Rouge, LA 70804
Phone: (225) 326-6766
emurrill@ag.louisiana.gov
Counsel for the State of Louisiana
BRIDGET HILL
Attorney General of Wyoming
RYAN SCHELHAAS
Chief Deputy Attorney General
Wyoming Attorney General’s Office
109 State Capitol
Cheyenne, WY 82002
Telephone: (307) 777-5786
ryan.schelhaas@wyo.gov
Counsel for the State of Wyoming
37
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