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Supreme Court Stays OSHA Emergency Covid-19 Vaccination Regulation

National Federation of Independent Business, et al.  v. Department of Labor, Occupational Health and Safety Administration, No. 21A244

Ohio, et al. v. Department of Labor, Occupational Health and Safety Administration, No. 21A247

Order and Opinion issued January 13, 2022 (S. Ct.)

The United States Supreme Court has issued an order staying the effect of an Occupational Health and Safety Administration (OSHA) Emergency Temporary Standard (ETS) requiring larger employers to adopt policies requiring and administer records concerning employees’ Covid-19 vaccination (the “vaccine mandate”).  OSHA’s regulation requires employers of more than 100 employees to require employees to be vaccinated against Covid-19, or face termination.  Employers may offer weekly testing and continuous masking as an alternative to vaccination at the employees’ expense. 

The vaccine mandate is estimated to affect 84 million workers nationally.  Employers who fail to comply face fines.  

Why the Supreme Court intervened to stay the effect of the OSHA vaccine mandate. Applying established legal standards governing issuance of a stay, the majority of the justices have concluded that the employers and the states challenging the vaccine mandate are likely to prevail on the merits of their claims.

No authority to be found. Nothing in the statute creating OSHA or any measures relating to the Covid-19 pandemic reflects Congressional intent to expand OSHA’s powers to regulate and to administer workplace safety to include public health matters in general, the justices observed.  OSHA’s emergency Covid-19 measure purports to preempt public health concerns traditionally reserved to the states.

This is no small measure. The unprecedented scope of the OSHA emergency regulation, undertaken without notice and comment procedures as an emergency measure excusing compliance, indicates the need for clear congressional authorization of a measure which would exercise powers of vast economic and political significance. Slip opinion (per curiam) at 6, citing Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___, ___ (2021) (per curiam) (slip op., at 6).

OSHA is a  workplace, not a public health, administration. OSHA is authorized to implement measures to address workplace safety, but OSHA has no authority to act as a federal public health agency regulating daily life.

Some room to act may exist notwithstanding the stay.  Vaccination, the majority noted, cannot be undone at the work day’s end.  Although OSHA lacks the vast powers it has attempted to exercise, particular industry working conditions may indicate vaccination would support employee health and safety.  OSHA might develop targeted mandates, but the sweeping mandate before the Court is causally untethered to the workplace, and is without historic precedent that would indicate it to be apt. 

The balance favors the affected employers and employees. Not only is OSHA without authority to regulate vaccination, equity favors a stay, the Court’s majority noted, as billions in unrecoverable compliance costs and fines will be incurred by employers, and many would lose their employment because of the OSHA vaccine mandate.

Three justices concur.  Justices Gorsuch, Thomas and Alito joined in a concurrence outlining the importance of the Constitutional principles governing governance itself as applied to the OSHA vaccine mandate.

Constitutional constraints.  The Constitution cabins legislative powers by requiring any exercise of federal legislative power to be tied to an enumerated Constitutional power, as powers not delegated to the federal government are reserved to the states, as is true of public health regulation. Congress cannot elide its limits by conferring legislative powers on executive agencies.  Thus, when an executive agency undertakes vast new measures, its authority to take such actions must be clear (the “major questions” doctrine) and may not be indirectly assumed (the “nondelegation” doctrine).  

Fie on a burgeoning bureaucracy. These concepts are not mere academic footnotes, the concurrence asserts, but they act as fundamental guards against “government of bureaucracy supplanting government of the people.”  Concurrence Slip Op. at 6, citing Scalia, A. A Note on the Benzene Case, American Enterprise Institute, J. on Govt. & Soc., July–Aug. 1980, p. 27. 

The vaccine mandate is not good by any measure. Application of these principles supports the Court’s stay.  OSHA can locate no clear congressional authorization for its actions, and even if one were believed to exist, the vaccine mandate would violate nondelegation principles, as such authority would confer upon OSHA unlimited discretion without any meaningful specific limits.

Three justices dissent. Justices Breyer, Sotomayor and Kagan have dissented, opining that while examining the powers of coordinate branches, the Supreme Court has overstepped its limits as the majority has failed to recognize and to defer to agency expertise supporting the vaccine regulation, which regulation is of the very sort that OSHA exists to undertake.  

Up OSHA’s alley in any event. Workplace regulation is permissible even if similar hazards exist outside the workplace, and such regulation is apt where, as with the Covid-19 virus, workplace contagion is a recognized hazard which gravely threatens workers’ well-being.

The majority checks others’, but should also check itself. Although the majority focuses on the limits of legislative and executive powers, the majority fails to recognize that while executive agencies cannot act without legislative authorization, the Supreme Court may not read in or impose a limitation on agency action where none exists.  The Court has erred in issuing the stay, as the Court lacks the regulatory expertise that OSHA has.  Similarly, and also erroneously, the Court has incorrectly assessed the public interest served by OSHA’s undertaking measures to hinder the sickness and death the Covid-19 pandemic has precipitated. 

National Federation of Independent Business v. OSHA (01_13_2022)

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Absent Administrative Notice and Comment, Amici Affected by the OSHA Vaccine Mandate Present Submissions to the U.S. Supreme Court Explaining Their Views

National Federation of Independent Businesses v. Department of Labor, No. 21A244,  consolidated with Ohio v. U.S. Department of Labor, No. 21A247. Oral Argument on  Applications for Emergency Stay of OSHA Vaccine Mandate set for Friday, January 7, 2022.

Biden v. Missouri, No. 21A240, consolidated with Becerra v. Louisiana, No. 21A241.  Oral Argument on Challenges to Stays of CMS Vaccine Mandate set for Friday, January 7, 2022. 

The principal parties will be heard on Friday, January 7, 2022 concerning whether the U.S. Supreme Court ought to intervene to stop the implementation of the U.S. Department of Labor, Occupational Health and Safety Administration (OSHA) Emergency Temporary Standard (ETS) mandating vaccination against the Covid-19 virus or testing/masking for all employers with more than one hundred employees.  Immediately thereafter, the Court will hear arguments concerning whether to dissolve stays imposed to halt the effect of a Centers for Medicare and Medicaid Services (CMS) Rule requiring vaccination of health care workers in federally supported settings.

The parties are also seeking certiorari before judgment in their respective cases.  Whether the Court will reach that issue at the same time that it addresses preliminary relief is not known.

What is known is that just as vaccination has engendered controversy nationally, interest groups, advocates, elected leaders, former officials, and professional associations have seized the occasion to submit their views to the U.S. Supreme Court in amicus briefs.

In broad brush, proponents of a stay of the OSHA vaccine mandate argue that OSHA does not have the authority to implement such a measure.  In the absence of explicit Congressional delegation of authority, OSHA cannot act outside known statutory parameters without clearly articulated guidance.  In addition, proponents of a stay assert that OSHA has no public health authority, as that is a police power reserved to the states.  OSHA has no authority to act on an emergency basiss where no emergency exists.  To like effect, OSHA erred in failing to permit notice and comment concerning its proposed vaccine mandate, as no actual emergency presenting a grave danger that requires intervention and excuses notice and comment exist.  

Proponents of a stay of the OSHA vaccine mandate argue that vaccination is ineffective concerning transmission of the Covid-19 virus and that the ‘vaccination’ itself is actually a gene-modifying medical treatment. 

In addition to the sweep of the OSHA measure, the federal intrusion on constitutionally protected individual interests in both bodily integrity and consent to medical treatment are implicated, requiring a hard look in advance of implementation.  

Finally, and not insignificantly, one amicus suggests that the imposition of vaccination or testing and masking measures within workplaces will precipitate medical segregation, an adverse social consequence. 

Those who applaud the arrival of the OSHA mandate assert that the Covid-19 pandemic is the most deadly viral infection event in U.S. history and that the workplace is a petri dish for contamination, making vaccination or masking and testing a valid first line of defense.  Some amici fear that if the mandate is not implemented, the consequences will spill over to their businesses to dismal effect. 

Presented below are thumbnails of the various amicus submissions concerning the OSHA vaccine mandate.  While the CMS Rule requiring health care provider vaccination is of great importance, limitations of time and space prevent development of those arguments here. 

 

 

Advancing American Freedom in Support of Applications for Stay or Injunction Pending Review

Advancing American Freedom in Support of Applications for Stay or Injunction Pending Review

These advocates for traditional values oppose the encroachment of the federal judgment and the administrative state.  There are grave dangers inherent in governmental invocation of emergency measures, particularly where, as here, the vaccine mandate does not address an emergency but presents a “work around” to avoid the necessity of Congressional action and/or administrative notice and comment.  OSHA’s emergency powers are to be used sparingly, and even as such, only one survived judicial challenge.  

 

America’s Frontline Doctors as Amicus Curiae in Support of Applicant

America’s Frontline Doctors as Amicus Curiae in Support of Applicants

Member physicians do not believe the vaccines prevent the spread of Covid-19, and, as result, there exists no basis for segregation of the vaccinated and the unvaccinated.  

The current vaccines are mischaracterized as such.  They are gene-modifying treatments that may reduce symptoms. 

The proper legal analysis should be derived from the strict scrutiny considerations of personal rights to refuse medical treatment.  The OSHA mandate would not survive such analysis, as it is not narrowly tailored to serve a compelling state interest.  They do not inhibit contagion, and thus do not serve the arguably compelling state interest in public health.  And the vaccine mandate is not narrowly tailored as the treatments do not consider risk factors or natural immunity.  There is evidence that natural immunity confers a long term benefit and there are also newly developed treatments to assist in addressing the virus.  

 

American Medical Association, et al.as Amici in Opposition to Applications for Stay 

American Medical Association, et al. as Amici in Opposition to Applications for Stay

These established medical professional associations perceive a severe risk to public health through higher workplace transmissions.  Vaccination can reduce the risk of contraction of the virus, result in less severe cases of illness, and less contagion. 

Testing offers no greater protection than nothing at all.  Masking may be helpful, but is not as good as vaccination. 

 

American Public Health Association, et al. as Amici in Support of Respondents

American Public Health Association, et al. as Amici in Support of Respondents

Public health associations observe that airborne viruses make the workplace particularly hazardous.  Covid-19 mortality is higher for in-person workers.  

Vaccination provides some insulation against transmission.  Moreover, vaccination diminishes transmission and therefore, mutation. 

 

Center for Medical Freedom, et al. as Amici in Support of Applicants

Center for Medical Freedom, et al. as Amici in Support of Applicants

Conservative groups opine that the vaccine mandate is”exactly what the Framers most feared when they established the federal government:  a raw exercise of arbitrary power.”  (Amicus Brief, p. 3).  

OSHA is a child of the commerce clause. There is no authority to regulate anything i the absence of commerce, and the impact of inaction on commerce is not a valid premise for commerce clause legislation.  

Reliance on Jacobson is misplaced, a statue measure was in issue there and as more than a century of subsequent law has been amassed, placing Jacobson’s vitality in question, and this is particularly so where Jacobson was conceived during the ascendancy of the eugenics movement. 

Justice Gorsuch has already rejected Jacobson as a premise for emergency extra-constitutional federal health measures.  

There is no federal police power that would support a vaccine mandate.  

Moreover, the premics of the mandate is flawed, as it is false to say the unvaccinated cause the pandemic.

Death attributable to the Covid-19 vaccines, which are ene therapy, suggest the vaccines themselves present substantial hazards.  

Separation of powers principles caution against implementation of the sort the OSHA vaccine mandate contemplates. 

 

Constitutional Accountability Center as Amicus Curiae in Opposition to Applications for Stay or Injunction Pending Review

Constitutional Accountability Center as Amicus Curaie in Opposition to Applications for Stay 

This progressive think tank and advocacy center submits that delegation with intelligible, principled guidance is appropriate, and that here that intelligible and principled guidance is found in the directive that OSHA may issue emergency orders where necessary to address a grave danger.  

Just because a measure is broad, this does not mean it is unintelligible.  Where such guidance has been provided, there should be no second-guessing agency action. 

 

Defending the Republic in Support of Emergency Applications for Stay or Injunction Pending Certiorari

Defending the Republic as Amicus Support Applications for Stay

Defending the Republic is engaged in challenging the vaccine mandate applicable to the Department of Defense, arguing that the mandate presents unconstitutional infringements on religious freedoms and the right to refuse medical treatment. 

The vaccine mandates represent unprecedented federal usurpations of power.  Nearly the entirety of the adult federal workforce is being conscripted to receive an experimental and irreversible medical treatment.  

 

Former OSHA Administrators Charles Jeffress, David Michaels, and Gerard Scannell as Amici in Opposition to Emergency Applications for Stay(or Injunction) Pending Certiorari Review

Former OSHA Administrators in Opposition to Applications for Stay

Three former Occupational Safety and Health Administration officials oppose a stay of the OSHA vaccine mandate, as it would impede implementation of measures intended to stop Covid-19.  

OSHA may regulate exposure to workplace hazards, including communicable disease, and may develop measures for immunization with religious exemptions.  OSHA can include the impact of workplace hazards on families, and has responded to concerns with bloodborne illnesses, hazardous waste, and respiratory conditions.  

Where the Secretary acts within statutory authorization, Chevon deference should be the norm.  

Simply because a condition exists outside the workplace does not mean that OSHA cannot address the condition within the workplace.  

 

IU Family for Choice, Not Mandates, Inc. in Support of Applicants

IU Family for Choice, Not Mandates, Inc. in Support of Applicants

An Indiana university coalition advocates for medical autonomy within the university community.  The group supports freedom of choice and opposes medical segregation or discrimination regarding access to education, employment, housing and community events.  

Covid-19 vaccines do not prevent infection and transmission.  The vaccines are better considered to be medical treatments ameliorating more serious aspects of Covid-19, but they are not a public health measure.  

OSHA does not have the authority to require unwanted medical treatment.  It is noteworthy that the Centers for Disease Control changed the definition of”vaccine” to conform to Covid-19 therapeutics. 

The OSHA Emergency Temporary Standard violates principles of bioethics concerning autonomy and choice in medical treatment.  

OSHA does not have police powers.  The states, not federal agencies, have police powers and those police powers are bound by the Constitution.  

OSHA cannot force the test/vaccine choice on the employee and pre-enforcement review requires a ‘harder look’ at such a measure.  Rigorous scrutiny is required where medical autonomy and consent are in issue.

Jacobson does not apply here because the OSHA mandate concerns a medical treatment, not a public health measure.  

A personal decision to refuse a medical treatment does not create a risk to others to whom disease might spread.  Refusal only impacts the person who refuses. 

The presupposition that vaccines would slow the spread of disease is in error.  

 

Jason Feliciano and the International Conference of Evangelical Chaplain Endorsers as Amicus in Support of Applications for Stay or Injunction

Jason Feliciano and the International Conference of Evangelical Chaplain Endorsers as Amicus in Support of Applications for Stay or Injunction

The individual and organizational amici provide credentialing for chaplains in the military.  The organization exists to promote religious free exercise.  

Amicus objects to the OSHA vaccine mandate as it is not a true vaccine, as the overwhelming survival rate of persons with Covid-19 infections suggests that there is no grave hazard, and as the mandate fails to consider religious concerns. OSHA does not have authority to impose measures where there is no hazard.  This is particularly problematic where the proposed measure does not inhibit transmission or contraction of the Covid-19 virus and associated illness.  Moreover, the fact that the Centers for Disease Control changed the definition of ‘vaccine’ to include the current injections is problematic.  

Those who resist vaccination are subject to punishment, either in the form of loss of their livelihoods, or, if masking and testing is chosen, in the form of fines, as the individual employee must bear the not insignificant costs of testing.  Further, testing does not provide valid information about contagion and thus is not helpful in curbing disease transmission, and a distinction between testing unvaccinated versus vaccinated individuals makes no sense, as both unvaccinated and vaccinated persons can transmit the Covid-19 virus.

Finally, the social costs of the vaccine mandate are difficult to calculate, as the mandate may usher in an era of medical segregation in which the vaccinated obtain a status superior to those who are not vaccinated.  

 

Liberty, Life and Law Foundation as Amicus in Support of Applicants

Liberty, Life and Law Foundation as Amicus in Support of Applicants

Concerned with constitutional liberties in the context of expanding federal powers, amicus foundation asserts that Jacobson was not a blank check.  Jacobson v. Massachusetts, 197 U.S. 11 (1905).  Congress must use especially clear language where, as here, Congress intends to upset the balance between federal and state powers.

Emergencies cannot be pretexts for denials of civil liberties and usurpation of powers.  The measures in issue raise concerns about bodily integrity, informed consent, and refusal of medical treatment.  

Jacobson was a narrow ruling which recognized the potential for government overreach.  Current analysis should require a compelling government interest.  Even if a compelling government interest could be found, the government has not chosen the least intrusive means of serving that interest.  

 

Local Unions 1249 and 97 of the International Brotherhood of Electrical Workers in Support of Emergency Applications for a Stay Pending Certiorari Review  

Local Unions 1249 and 97 of the International Brotherhood of Electrical Workers in Support of Emergency Applications for a Stay Pending Certiorari Review 

The electrical workers’ unions think that unvaccinated members should not be forced to choose between vaccination and supporting their families.  The vaccine mandate is well outside OSHA’s traditional bailiwick.

Unions can work with management quite effectively to develop Covid-19 policy.  Particularly as the virus and infections will change over time, it is preferable to allow for hands on negotiation rather than to accept top-down demands. 

Traditionally, OSHA does not regulate employers and employees.  Here, there are significant personal cost consequences to employees and a demand that employees subite to an irreversible medical procedure that affects the individual both when working and when not working. 

Although it is true that a hazard need not be solely a workplace hazard for regulation to be proper, the federal government does not routinely impose costs on employees.  

 

Members of Congress as Amici Curiae in Support of Applicants

Members of Congress as Amici Curiae in Support of Applicants

One hundred eighty three members of both houses of Congress fer the disregard of separation of powers principles that th eOSHA vaccine mandate represents.  Congress has not authorized OSHA’s action:  theser exist no deletion of power nor an intelligible principle to support delegation of power to OSHA.  Public health care does not fall within OSHA”s emergency powers, yet OSHA wants to expand those powers outside the workplace.  There is no grave danger that OSHA might address nor is a virus a toxic or hazardous agent as contemplated in the OSHA act.  

The vaccine mandate lacks the ‘necessity’ the OSHA statute requires and the measure itself does not inhibit contagion and contamination.  A rule that does nothing to address a (non-extant) grave danger is not a measure that is “necessary,” as the OSHA statute contemplates.

Equally problematic is the absence of any limiting principles application to ASHA’s actions, which gives rise to non-delegation concerns.  The purpose of reducing the number of unvaccinated individuals on its face exceeds OSHA”s jurisdiction to regulate some workplace safety concerns.  And even if there were authority to act, the failure of Congress to state clearly the principles to guide OSHA causes ‘major questions’ doctrine problems as the vaccine mandate upsets the federal – state power balance. 

 

National Disability Rights Network and the Judge David L. Bazelon Mental Health Law Center as Amici in Opposition to Applications for Stay 

National Disability Rights Network and the Judge David L. Bazelon Mental Health Law Center as Amici in Opposition to Applications for Stay 

Advocates for the physically and mentally disabled support the OSHA Emergency Temporary Standard because, they assert, the physically and mentally disapbled are particularly vulnerable to Covid-19 workplace infection, and face higher mortality rates if they are infected.  Those who refuse vaccination or refusing masking and testing present a new workplace hazard.   Studies suggest that the Emergency Temporary Standard is a necessary measure in mitigation.  Enjoying the Emergency Temporary Standard would disproportionately affect medically vulnerable and disabled persons. 

 

National Employment Lawyers Association and Jobs with Justice Education Fund in Opposition to Emergency Applications for a Stay or Injunction Pending Review

National Employment Lawyers Association and Jobs with Justice Education Foundation Amicus Brief

Acceptance of petitioners’ arguments would open many existing workplace regulations to challenge.

If workers are given a liberty interest superseding federal regulatory powers, then workers may refuse to work. 

The federal government has regulated workplaces in the past, i.e., with drug testing, permitting physical qualifications for work, mandating retirement, and regulating the use of hard hats or the advisability of beards.

With respect to major questions, judicial line drawing between major and minor issues is not committed to the judicial branch.

Petitioners’ Commerce Clause argument would invalidate all federal employment legislation.  It is well established that federal regulation may be applied to noneconomic activity with economic consequences.  

 

Small Business Majority, et al. in Opposition to Emergency Applications for Stay or Injunction Pending Certiorari

Small Business Majority, et al. in Opposition to Emergency Applications for Stay or Injunction Pending Certiorari

Small businesses fear that a stay will cause them to lose the protections that would flow from large businesses’ compliance with the OSHA vaccine mandate.  As some states have interfered with eemployers’ efforts to require vaccination, federal intervention is needed.  

 

Standard Process, Inc. in Support of Emergency Application for Administrative Stay, Stay, and Alternative Petition for Stay Certiorari Before Judgment

Standard Process Inc. as Amicus in Support of Stay and Certiorari Before Judgment

This whole food nutritional supplementation manufacturer fears that the OSHA vaccine mandate will precipitate mass employee resignations,and that, owing to Standard Process’s rural location, those employees will not be replaced.

Testing is not accessible in the way that the government would like to believe.  Equally importantly, employer compliance costs are extraordinary and are neither private nor self-contained.  

In all, the vaccine mandate needlessly undermines both private and public interests. 

 

Texas Values, et al. as Amici n Support of Applicants

Texas Values, et al. as Amici in Support of Applicants

States’ ‘family values” policy advocates object to widespread regulation of employees without notice and comment and without proper concern for religious exercise.  The administrative state is particularly prone to disregarding religious liberty. OSHA has taken the position that employees’ religious interests are outside OSHA’s purview, but even with their ‘proper’ administrative nice, those concerns do not receive fair treatment, as employers may disregard religious concerns where addressing them would require more than de minimis costs.  The public has been denied a voice in the development of this sweeping measure, a measure which lies outside OSHA’s statutory authority.  

 

Tore Says LLC in Support of Petitioners

Tore Says LLC as Amicus in Support of Petitioners

This multimedia news outlet focuses on the thinking of the founding fathers with particular concern for the Ninth and Tenth Amendments to the U.S. Constitution.

Corporations have constitutional rights, and ought to be free from government intrusion, as the government has only those rights which are granted to it by the people.  The Ninth Amendment guarantees against federal intrusion and the Fourteenth Amendment guarantees against state intrusion. 

Because of the Ninth Amendment, there is no authority for the government intrusion that the vaccine mandate represents, but even if there were such a power to intrude, that power would be reserved to the states.  

Public health traditionally is entrusted to the states.  No federal police power exist to support the board exercise of federal powers in issue here.  

 

Washington Legal Foundation in Support of Applicants 

Washington Legal Foundation in Support of Applicants

This foundation supports free enterprise, individual rights, limited government, and the rule of law.  The vaccine mandates are causing supply chain issues and rising prices.  The vaccine mandate is not within OSHA’s authority but if it were notice and comment would be needed, not an emergency measure implemented outside ordinary procedure.  

The mandate presente employees with a forced choice between vaccination,testing, or losing employment.  

The emergency measure is odd in that in June, 2020, the U.S. Court of Appeals for the District of Columbia Circuit observed that OSHA need not issue a mandate.  This is all the more curious because the nation is more than one year, and closer to two years, beyond the inception of the pandemic, and the government wants to use an ‘emergency’ measure.

This is a fitting case for granting certiorari before judgment, given the time constraints presented by the Emergency Temporary Standard, which will expire by its terms in six months.  

 

We the Patriots USA in Support of Emergency Applications for Stay or Injunction Pending Review and for Certiorari Before Judgment

We the Patriots USA in Support of Emergency Applications for Stay or Injunction Pending Review and for Certiorari Before Judgment

This group defines itself as promoting constitutional rights and offers that the vaccine mandate represents the largest disruption of personal choice and bodily integrity in history.  

Since Jacobson, substantive due process rights have developed in recognition of individual fundamental unenumerated rights under the Fourteenth Amendment.  

Tiers of tests for unenumerated rights have been inconsistently applied, sometimes utilizing strict scrutiny, and sometimes not, depending on whether bodily integrity or self-determination is in issue.  Abortion is recognized as a fundamental right, while refusal of medical treatment requires balancing of personal and state interests, with the scales favoring the state.  This uneven treatment of similar questions needs to be addressed.  

The vaccination or testing/masking alternatives are not true alternatives because the costs of testing, which must be borne by employees, are so prohibitive that the average employee is forced to submit to vaccination.  

The Commerce Clause concerns economic issues only and is not concerned with non-economic public health activity, which belongs to the states.  

It is not proper to characterize any skepticism concerning the vaccines as an “anti-vax” position.  The reliance on inconsistent statements of “experts” about Covid-19 is of great concern.  

The OSHA vaccine mandate is a major question because mandatory medical treatment for vast portions of the population is a major political and economic question.

State power to administer public health measures should be retained.  The regulation of containment and remediation of viral transmission is a state matter, but in any case the regulation of a virus is not a regulation of activity within the Commerce Clause.

Upholding the vaccine mandate would open the door to unprecedented federal regulation of public health questions.  

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Stay of OSHA Covid-19 Private Employer Vaccine Mandate Dissolved:  Sixth Circuit Panel Finds Employers Failed to Meet Standard for Granting Stay

In re:  MCP No. 165, Occupational Safety and Health Administration, Interim Final Rule; Covid-19 Vaccination and Testing; Emergency Temporary Standard 86 Fed. Reg. 61402. No. 21-7000 (6th Cir.). Order dissolving Fifth Circuit stay entered December 17, 2021.

The United States Court of Appeals for the Sixth Circuit is now administering consolidated litigation from all federal circuits relating to the U.S. Department of Labor, Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS)  issued November 5, 2021.

The Emergency Temporary Standard  mandates that employers with more than one hundred employees require that employees be vaccinated against Covid-19 or be tested frequently and masked.  

On December 17, a three-member panel of judges of the Sixth Circuit dissolved the stay of the ETS entered by the Fifth Circuit Court of Appeals prior to multi-district litigation consolidation.  

Two of the three judges have published an opinion providing  a point-by-point refutation of the Fifth Circuit’s views  One judge has written a separate concurrence.  A third has dissented.  

No stealing bases. It appears that the courts may be experiencing ’emergency’ fatigue, and even if this is not so, skipping procedural steps has been discouraged. Earlier in the week the Sixth Circuit denied motions for initial review en banc.  This will serve to inhibit the litigants in seeking immediate review in the U.S. Supreme Court prior to seeking rehearing en banc and could aid the Supreme Court, if such immediate review is nonetheless sought, in remanding the case to the federal appellate court for further proceedings.  

          In procedurally unrelated but topically similar litigation, the United States Supreme Court has denied a petition to stay New York’s vaccine mandate pending review of a petition for certiorari which argues that New York’s failure to provide for religious exemption from vaccination violates the First Amendment.

The Opinion in the Multidistrict Litigation.  The Sixth Circuit perceives the Covid-19 virus to be an ongoing causative agent, one which has killed people and shut down the economy, which prompted employers to seek guidance from the Department of Labor Occupational Health and Safety Administration (OSHA), which in turn, on November 5, 2021, issued an Emergency Temporary Standard requiring certain employers to require employee vaccination or face covering and frequent testing.

          The Fifth Circuit enjoined implementation of the ETS the day after it was issued.  The court affirmed its decision a week later.

          The Sixth Circuit now observes that OSHA may issue emergency orders bypassing public notice and comment proceedings where grave danger requires employee protection.

          The OSHA emergency measure does not require employee vaccination, the court has found, as employees may be masked and tested or work from home, but employers must maintain vaccination records or face penalties. 

The Sixth Circuit panel has examined the four established evaluative factors to be considered in staying any measure before litigation.

Petitioners’ Likelihood of Success on the Merits.

          Authority for OSHA’s Action Exists.  Contrary to the Fifth Circuit’s determination, the Sixth Circuit perceives that OSHA may regulate infectious diseases within its statutory authority. 

          The “major questions” doctrine cited by the Fifth Circuit is an interpretive tool permitting exception from deference to agency authority, but it is vague and it is in any case inapplicable where agency authority has not been expanded, the court has explained.  

          Same emergency, different authority. The OSHA Covid-19 employer mandate can be distinguished from the eviction moratorium declared unconstitutional earlier this year by the U.S. Supreme Court.  The Centers for Disease Control lacks authority to regulate landlord-tenant relations, as the Supreme Court has found, but here, the Sixth Circuit panel has concluded, OSHA has established authority to regulate workplace safety.

          Moreover, OSHA gathered evidence substantiating its conclusion that an emergency exists.  The Sixth Circuit declined to find that any necessity permitting emergency intervention by OSHA be universal or absolute, but rather found that the persistence of workplace issues prompted issuance of the emergency temporary standard as the last arrow in the Secretary of Labor’s quiver. 

          The federal appellate judges dismissed attacks on the OSHA measure as over or under inclusive, finding that the efficacy of a measure, particularly an emergency measure, need not be perfectly calibrated or accompanied by a cost-benefit analysis.

          The panel dismissed the notion embraced by the Fifth Circuit that the OSHA mandate is in violation of the Commerce Clause, and impact on interstate commerce, such as viral contagion, is sufficient to establish a basis for federal law and federal preemption. 

          The Sixth Circuit judges found the non-delegation doctrine to be somewhat musty and in any case inapposite where it is well established that Congress may delegate to executive branch powers to act in the public interest or to protect public health. 

Whether Irreparable Harm Will Befall Petitioners in the Absence of a Stay. 

The Sixth Circuit explored the irreparable harm issue notwithstanding its view that its analysis of the petitioners’ assertions and arguments fail to demonstrate the likelihood of success on the merits, which could have ended the inquiry because the public interest analysis merges with the likelihood of success on the merits analysis where the government is a party.

The judges dismissed as “speculative” employers’ views of compliance cost, including loss of workers, and noted that if cited for non-compliance, an employer can always assert the impossibility of compliance as a defense.  The potential harm to the public of failure to implement Covid-19 contagion mitigation measures such as the OSHA employer mandate, in light of the harms already incurred by the nation, are staggering, and the risks to the public are only underscored where petitioners have not shown that they are likely to prevail on  the merits.  

Note well:  this panel’s opinion may not be within the judiciary’s bailiwick.

In a separate concurrence, Circuit Judge Gibbons has written to emphasize his view that the judicial branch ought not be as active in policy questions as this litigation has demanded.  The judge notes that questions of what the other branches might have done differently or “sweeping pronouncements” about constitutional law, themselves “untethered” to the present case, invite the judicial branch to exceed its limits.  Separation of powers principles preclude judicial second-guessing of coordinate branches.  Where a court concludes that an agency has acted within its authority and within constitutional bounds, the judge opined, the court ought not press further into realms committed to other branches’ expertise.  

Au Contraire:  Dissenting Judge Opines that Panel Analysis is Wrong

The dissenting member of the panel thinks the question of constitutional and statutory authority is squarely within the power of the judiciary.

The dissent wholly disagrees with the view that the OSHA emergency measure permits employers to decide how to manage workplace Covid-19 risks.  Employers must adopt written policies, demand that employees be vaccinated unless exempt, and pay employees who need time off to get vaccinated.  The mask and testing alternative was, by OSHA’s own admission, designed to be unpalatable as by its operation it imposes costs of testing on employers.

The dissent observes that it is not necessary that petitioners demonstrate a likelihood of success on each and every one of its theories in order to substantiate the need for a stay:  the potential to prevail on one theory would suffice.

Petitioners can demonstrate a likelihood of success, the dissent has concluded, because OSHA has exceeded its authority, which limits the promulgation of emergency measures to circumstances in which employees face grave danger and the emergency intervention is necessary to protect employees.

Where OSHA never made a finding that its rule was necessary, the rule cannot be upheld:  the insufficiency of extant measures, which is the justification offered by the Secretary of Labor, will.not meet the “necessary” standard. 

Moreover, effectiveness is a separate question that cannot be bootstrapped into a determination of necessity.

The dissenting justice rejects the notion that emergency measures, by their very nature, need not be as carefully crafted or supported as normative acts, and this is particularly so where OSHA has had nearly two years to consider protections and to evaluate alternatives.  Where no showing of necessity can be made, the emergency measure cannot be sustained.

Of similar concern is that the Secretary failed to locate a “grave danger” that would support the private employer vaccine mandate.  Although viral infection can be dangerous, there is no evidence showing that contracting the disease is a grave threat, as available data show varying levels of risk among different demographics.

There is no evidence linking contraction of Covid-19 to the workplace.  Those who are already vaccinated are not, by and large, imperiled.  Where a mortality rate of one in two hundred and two cases of infection is said to exist among the unvaccinated, OSHA has not met the “grave danger” requirement, particularly where no link to workplace harm has been shown.  

The dissent questions the panel’s minimization of the substance of the “major questions” concerns petitioners raise where OSHA has never issued an emergency measure of the scope of the Covid-19 employer mandate and, the dissent observes, the question is not simply one of the kind of measure OSHA may implement, but also its scope or degree (emphasis in text). 

Given the Supreme Court’s discussion of the “major questions” doctrine in declaring the CDC eviction moratorium to be invalid, it is not accurate to say, as this panel has, that the “major questions” doctrine is an arcane exception to deference to agency expertise.  

Finally, OSHA’s circumspection in other contexts supports similar caution here, and does not support promulgation of an expensive and unparalleled emergency measure.

Employers will be hamstrung by the costs of compliance and by the potential loss of employees that may ensue.  Similarly problematic is the loss that will result to individuals who submit to vaccination only to learn later, as they may,  that the command to do so was not supported in law. 

The dissent points out that OSHA cannot complain that petitioners have not substantiated their claims where by invoking emergency authority OSHA foreclosed the opportunity for notice and comment that would permit submission of evidence for agency consideration.  

Opinion of the U.S. Court of Appeals for the Sixth Circuit Dissolving Stay of OSHA Mandate

In re. MCP No. 165. Sixth Circuit Order December 17, 2021

Correspondence and Opinion of the U.S. Court of Appeals for the Sixth Circuit Denying Initial Hearing En Banc

In re. MCP No. 165, Sixth Circuit Order December 15, 2021

Order of the U.S. Supreme Court Denying Injunctive Relief with Dissenting Opinion

21A145 Dr. A v. Hochul, No. 21A 145 Order and Dissenting Opinion December 13, 2021

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Sectarian Versus Secular Civil Rights: Supreme Court Permits Church Employers Latitude in Defining Employee Roles and Rights

Our Lady of Guadalupe School v. Morrissey-Berru, No. 19-267 (July 8, 2020); St. James’ School v. Biel, No. 19-348 (July 8, 2020).

In this challenge to churches’ capacity to determine their own rules of employment, Justice Alito wrote for the Court’s majority; Justices Thomas and Gorsuch wrote separately in concurrence; and Justices Sotomayor and Ginsburg dissented.

Teachers at the religious schools in the cases now before the Court have responsibilities similar to those described in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 565 U.S. 171 (2012).   These teachers do not, however, have titles associated with professed religious persons or functions.

Mid-twentieth century precedent established that religious institutions have the capacity to decide matters of church governance without state interference.  Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U.S. 94, 116 (1952).

Here, one elementary school teacher who taught all subjects, including religion, complained to the Equal Employment Opportunity Commission (“EEOC”) that the school administration’s determination to change her to part-time status was age discrimination.  The other plaintiff claimed discrimination in discharge because of her need for breast cancer treatment.  Both responding employers stated that their decisions were bawsed on employee performance.

The question is how the principles of independence constitutionally assured in church governance apply to church autonomy in employment decisions, in which churches enjoy a “ministerial exception” to otherwise applicable laws for religious positions.  An individual’s role in conveying the church’s mission and the trust conferred on that individual are significant, but the title “minister” in itself will not require exemption nor is it necessary to confer exemption.  Where both teachers in these cases were entrusted with performance of religious duties, the ministerial exception appropriately applies. The determination whether the exception applies cannot be made by rote review of titles and checklists as ultimately a court, unschooled and unskilled in religious matters, must look to what an individual does, not what he or she is called.

The hiring exemption permitting churches to prefer members of their religion in hiring decisions is of a different character than the ministerial exception, and the principle applicable there do not need to be imported to the ministerial exemption.  Judicial inquiry into who is a member of a faith and who is not would impermissibly intrude on a church’s definition of participation.

A rigid formula for characterizing employment as religious is inapt.  “When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teachers threatens the school’s independence in a way that the First Amendment does not allow.”  (Slip Op. at 26-27.)

Justices Thomas and Gorsuch concur.  Justice Thomas asserts that courts must defer to church determinations of what is ministerial, as this is inherently a theological question that cannot be answered by civil law.

Justices Sotomayor and Ginsburg dissent.  The dissenting justices point to the predominantly secular functions performed by the teachers in these cases, their lack of religious training, and the absence of any religious requirement attaching to their positions.  Employers are required to conform to generally applicable laws and Congress has created exemptions where appropriate.  The ministerial exception is judge made law.  Because of its sweep, which would permit religious animus, the exception must be narrow, as it is subject to abuse.  It is to be preferred to make constitutional determinations on a case by case, holistic, basis.  The “functional status” analysis adopted here, focused on what an employee does, rewrites Hosanna-Tabor, making a two justice concurrence in that case into the prevailing opinion.

Where the civil rights of thousands of employees in religious organizations are in issues, analytical vagueness and deference to religious entities determinations invites abuse, permitting religious bodies to determine for themselves what the law is ad absolving the institutions of responsibility for religious animus.  Justice Sotomayor’s application of Hosanna-Tabor would lead to a conclusion contrary to that of the majority.  Biel was a teacher who participated in religious functions with a half day’s training in religious pedagogy. Morrissey-Berru taught various subjects and taught religious matters from a workbook chosen by the church.

Neither plaintiff ought to have bee barred from asserting claims based on a ministerial exception.  Neither was a minister, neither was trained as such, neither had a leadership role in the faith community, and both function predominantly as academic teachers. Depriving them of civil rights based o a small amount of time engaged in religious activity is harsh, especially where no religious reason was proffered for the churches’ acts concerning plaintiffs’ employment.

Our Lady of Guadalupe v. Morrissey-Berru, No. 19-267 July 8, 2020

 

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Time and Tide and Textualism: Supreme Court Holds “Sex” in Civil Rights Act Includes Orientation and Transexual Status

GERALD LYNN BOSTOCK v. CLAYTON COUNTY, GEORGIA, No. 17-1618; ALTITUDE EXPRESS, INC., ET AL. v. MELISSA ZARDA AND WILLIAM ALLEN MOORE, JR., CO-INDEPENDENT EXECUTORS OF THE ESTATE OF DONALD ZARDA, No 17-1623; R.G. & G.R. HARRIS FUNERAL HOMES, INC. v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,ET AL., No. 18-107 (June 15, 2020)

Today the United States Supreme Court held that interpretation of the statutory language of Title VII of the Civil Rights Act of 1964, as amended, compels the conclusion that sexual orientation and transexual status, inextricably bound to sex, are within the meaning of the statute prohibiting discrimination because of sex.

The decision will undoubtedly be hailed as a great victory for rights activists while the opinion of the majority and the opinions of the dissenting justices will undoubtedly provide grist for the jurisprudential mill for years to come.

Justice Gorsuch, writing for the majority, observed that what Congress foresaw when it enacted the Civil Rights Act of 1964 does not mean that the legislation must be myopically interpreted according to that time:

“…the limits of the drafters’ imaginations supply no reason to ignore the law’s demands.  When the express terms of a statute give us our answer and extratextual considerations suggest another, it’s no contest.  Only the written word is the law, and all persons are entitled to its benefit.”

Slip. Op. at 2.

Each of the plaintiffs was a long term employee and each was terminated from employment because of sexual orientation or transgender status.  Employers argued that neither orientation nor transgender status are part of Title VII and that, therefore, the terminations were not discriminatory. Three federal circuit courts of appeal interpreted Title VII without consensus.

Statutory construction looks to the “ordinary public meaning” of words at the time of a law’s enactment.  This inhibits judicial meddling in legislative affairs and promotes soundness in public perception of rights and obligations.

Assuming that in 1964 “sex” meant biological sex, the majority wrote, then “because of sex” meant “by reason of” or “on account of” sex.  This establishes but-for causation and obviates the need for parsing concomitant or serial causes.  Once an employment decision is made that would not be made if an individual’s sex were different, liability attaches and it is immaterial if other causes are present.  It does an employer no good to point to other reasons once sex is a reason for a decision.  Indeed, over time the Congress has amended the Civil Rights Act to include liability where sex is a “motivating factor” in a decision.

The Court rejected the employers’ argument that discrimination could only be in reference to others similarly situated, as the statute repeatedly references individuals.  It is of no moment if an employer generally treats women well if in an individual case a decision was based unlawfully on sex.

If sex cannot be relevant to employment decisions, the Court reasoned, then neither can sexual orientation or status, as both are inextricable from sex.

Since enactment of the Civil Rights Act of 1964, discrimination “because of sex” has come to include discrimination based on habitual perceptions or stereotypes or actuarial assumptions.

It is no answer to say that Congress could not or did not foresee sexual orientation or status as a concern at the time of enactment when the statutory language addresses sex and orientation and status are inseparably related to sex.

It makes no difference, the majority found, that orientation or status was not included in the statutory language where those traits are inextricably interwoven in sex.

Concluding that orientation or status is not within Title VII based on Congress’ failure to amend Title VII where it has directly considered sexual orientation in other statutes would be speculation.

Asserting that meanings have changed since 1964 is unavailing where the plain meaning of the statute supplies the answer needed. The breadth of Title VII as it has been interpreted over time cannot be denied.  As such, the Court’s decision in this case is not unusual in light of the many unanticipated decisions flowing from the Civil Rights Act in the more than half century since its passage.

Three Dissenting Justices, Two Dissenting Opinions.   Justice Alito, joined by Justice Thomas, chastised the majority for having confused textualism with legislation, performing the former poorly and usurping Congress’ function in the latter.

The majority has engaged in a “false flag” textualist operation, as neither sexual orientation nor transgender status appear in the text and the form of ‘textualism’ which would permit the legislative updates provided by the majority was denounced by textualism’s primary proponent, Justice Antonin Scalia.

Justice Alito notes that an exhaustive review of dictionaries failed to disclose any incorporation of orientation or status within the meaning of “sex.” Moreover, orientation and status are in fact separable from “sex.”  Plaintiffs’ counsel conceded at oral argument that if an employer were to prohibit hiring on the basis of gay or transgender status but hiring would be without knowledge of biological sex, this practice would not be discrimination “because of sex.”

This very concession makes the majority’s reasoning all the more lacking, Justice Alito found. Moreover, if an employer is unaware of a potential employee’s sexual orientation or status, that employer cannot be found liable for intentional discrimination on that basis.

Justice Alito sees a rich irony in the majority’s effective statutory amendment under the guise of ‘textualism’.  Although the majority purports to interpret the statutory language as it is written, the majority overlooks more than a half century’s interpretations of that text, all the while declaring its ‘judicial humility’.

The ramifications of the Court’s decision cannot be overlooked.  The decision may impact facilities access, sports participation, housing, religious employment, and health insurance coverage for gender reassignment.  Speech freedoms may be implicated by forms of address and language.

Writing separately in dissent, Justice Kavanaugh opined that Congress and not the Supreme Court must address the question before the Court.  While stressing his position that sexual orientation and transgender stratus must fall within the law, the decision maker on this policy belongs to the legislative branch.

Justice Kavanaugh questioned the utility of the literalist textualism that he saw in the majority’s view, as the law requires that interpretation look to the ordinary, not the literal, meanings of words and phrases.  A rigid literal approach is not a good textual approach, according to textualism’s proponents.  And literal interpretations, disregarding as they may the everyday meaning of words, fail to perform the essential work of the law, which is to put the citizenry on notice of what the law is.

Equally problematic is the majority’s decision to rewrite history in creating its new interpretation.  To disregard history serves no goal well, no matter how laudable in principle that goal may be.  Historically sexual orientation discrimination has been seen as a form of discrimination separate from sex discrimination.

While it is understandable that those affected and those who support them would find joy in the majority’s decision, Justice Kavanaugh fears that the majority’s methodology will be questioned by many, and that, as a result, many will simply not buy it. A lack of confidence in the opinion is of little aid to those supporting the conclusion and undermines confidence in the Court as an institution.

17-1618 Bostock v. Clayton County (06_15_2020)

 

 

 

 

 

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Suitable Accommodations Must Await Another Day: Supreme Court Declines Review of Walgreen Employee’s Religious Discrimination Claim

Patterson v. Walgreen, No. 18-349, 549 U.S. ____ (cert. denied February 24, 2020).

A decades-old Supreme Court case offhandedly announced that the “undue burden” that would relieve employers of any obligation to accommodate an employee’s religion need only be more than de minimus.  Joining in denial of certiorari of an employee’s case against Walgreen, Justices Alito and Thomas would like to revisit the standing precept, particularly where the old decision relied not on the civil rights statute but on federal agency guidance which predated statutory refinements of the definition of ‘religion’.

 

The Solicitor General suggested that other issues are of concern that need review, but the Court does not consider this case to be the proper vehicle.  The Solicitor General has asked whether an employer must offer a partial accommodation where a full accommodation would pose an undue hardship, or whether speculative harm can establish undue harm.  

 

Patterson alleged that Walgreen’s discriminated against him because his religion forbade working on his sabbath.  Walgreen’s routinely accommodated him in scheduling his work but declined to do so when an urgent need arose and it was thought that  accommodation would work an unairmness to another employee.

 

Patterson failed to appear for the requested Saturday work, which precipitated a delay in training Walgreen employees.  Discussion with Patterson was not fruitful. Patterson wanted a guarantee that he would never be asked to work on his sabbath.  He declined consideration of other positions where the issue would not arise. Walgreen’s suspended and later terminated Patterson.

 

The 11th Circuit observed that Patterson had established a prima facie case, leaving for decision on whether Walgreen failed to offer a reasonable accommodation or that Walgreen’s could not offer a reasonable accommodation which would not pose an undue hardship, which hardship can embrace both direct and indirect costs.  

 

An accommodation need not be the one requested by an employee, nor need the employer offer an array of accommodations from which to choose.  The duty to accommodate his match by a countervailing duty on the employee’s part to work with the employers as the employer suggests.

 

The 11th Circuit declined to address in depth the issue of undue hardwhip because Walgrehaten’s had offered Patterson the opportunity to change schedules when practicable or to obtain another position.  Even if undue hardship were considered, however, Patterson would not prevail because Walgreens would have incurred undue hardship had it been forced to rearrange its business schedule and that of other employees’ to accommodate Patterson.

 

The 11th Circuit also affirmed the trial court’s rejection of Patterson’s retaliation claim.  It cannot be said, the appellate court observed, that Patterson’s termination subsequent to his rejection of all reasonable accommodations was retaliatory.  An employee cannot both reject proffered reasonable accommodations and then claim retaliatory termination.  

 

Although the case will not be heard by the Supreme Court, the opinion accompanying denial of certiorari establishes that at least some of the associate justices are not at ease with the low standard that applies to employers concerning religious accommodations nor are they pleased with the continued existence of outdated definitions of religion.  The denial of certiorari means that the 11th Circuit’s view that an employee must cooperate with an employer concerning accommodations stands. As the 11th Circuit sees it, an employee seeking a religious accommodation cannot insist on the employee’s choice of accommodation, nor can the employee complain of retaliation where reasonable accommodations were offered and the employee rejected them.  

 

JustLawful prognostication:  This case was continued on conference lists for nearly a year, indicating its significance to the Court was not insubstantial but, as the concurring justices noted, the case did not present squarely the open issues that ought, in their views, to be addressed.   With the opinion below undisturbed, the balance of power in employer – employee relations in religious accommodations, at least in the 11th Circuit, rests with the employer. An employer may terminate an employee who refuses a reasonable accommodation, and may demonstrate that accommodation presents an ‘undue burden’ by offering only that the accommodation would cause more than slight harm.  

These issues will not diminish but only expand as the nation moves toward embracing a more expansive notion of religion and religious observances, and as the population of the United States grows ever more diverse in its demographics and in its religious practices.  The push and pull of employer and employee needs will likely not abate any time soon, making the hope for an apt case to serve as a vehicle to review will be presented sooner rather than later. Of course, there is nothing that stands in the way of legislative correction or executive and/or administrative refinement, perhaps obviating judicial intervention, should the coordinate branches’ respective spirits be so inclined.

 

Patterson v. Walgreen 18-349_7j70 February 24, 2020

Patterson v. Walgreen 11th Cir. March 9 2018

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Badmouthing Police Officer Online, Absent Malice, May Not Demonstrate Bad Character Disqualifying Applicant from Licensure as Private Investigator

Gray v. State, No. 18-AP-65 (Kennebec Sup. Ct.) July 18, 2019.

Maine requires proof of character for licensure as a private investigator, as demonstrated through review by the state police.  In Gray’s case, the police were not well pleased with Gray’s online statements about a police officer, and disqualified him from licensure because he was seen as being unable to provide accurate accounts of matters. 

The Maine Superior Court applied the brakes to this position, observing that offering an opinion online is speech protected by the First Amendment.  In remanding for further administrative proceedings, the court concluded that If the posting were made with knowledge of its falsity or otherwise evinced actual malice, then consideration would be appropriate in the applicant’s character evaluation.  

Justlawful observation:  The judge sidestepped the quagmire that open season on online posting as character could invite while providing some guidance on evaluating troubling online behavior, while simultaneously avoiding what might very well turn out to be an epic feud between the police and the applicant for licensure. 

Gray v. State (Kennebec Sup. Ct.) July 18, 2019

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Wrongful Termination Case Cannot Proceed in Federal Court Where No First Amendment Rights Attach to Private Employment Disputes and Defense Cannot Confer Jurisdiction Otherwise Lacking

Cox v. Bishop England High School, et al., No. 2:19-cv-002202 (D. S.C.) September 17 2019.

A First Amendment claim regarding wrongful termination is insufficient to confer federal jurisdiction over the case, as Congress has not extended First Amendment protections to private workplaces.  Under the well-pleaded complaint rule, the assertion of defenses grounded in federal constitutional law will not, without more,transform a state law complaint into a federal one.

Cox v. Bishop England High Sch. (D. S.C., 2019)