Supreme Court Stays Stays of Healthcare Workers’ Vaccine Mandate, Finding Federal Authority Within Regulation of Medicare and Medicaid Programs


Biden, et al. v. Missouri, et al., No. 21A240.

Secretary of the Department of Health and Human Services, et al. v. Louisiana, et al., No. 21A241.

Order and Opinion issued January 13, 2021.


The United States Supreme Court has granted the relief from stays entered in two United States District Courts enjoining the effectiveness of a Centers for Medicare and Medicaid Services (CMS) rule requiring Covid-19 vaccination of staff of facilities and providers receiving or participating in Medicare of Medicaid programs.

The Department of Health and Human Services (HHS), Centers for Medicare and Medicaid Services (CMS), administers Medicare insurance for the elderly and Medicaid insurance for low income persons.

A core feature of both programs, the Supreme Court has observed, is that participation in those programs is contingent upon compliance with HHS patient health and safety regulations.

Medicare and Medicaid regulation is extensive and longstanding and include measures to guard against transmission of infectious diseases, the Court has found.

In November, 2021, HHS added Covid-19 staff vaccine compliance to regulations governing those receiving federal reimbursement or funding (“covered” facilities or entities), attaching penalties for failure to comply as well as potential termination of participation in federal financing.

In demanding that all persons working in covered facilities be vaccinated, the Secretary of HHS made findings concerning viral contagion and the likelihood that contagion would be inhibited by requiring vaccination.

In addition, the Secretary found that fear of contracting Covid-19 has inhibited people from seeking needed health care.

The Covid-19 vaccine mandate was promulgated as Interim Final Rule without notice and comment.

The Supreme Court has concluded that the Secretary of Health and Human Services has the authority to condition receipt of federal funding upon compliance with health and safety regulations.

Although the Covid-19 vaccine mandate for healthcare workers goes farther than other healthcare health and safety requirements, vaccination as a condition of employment is routine.  As vaccination is ordinarily administered by the states, prior to the Covid-19 pandemic there has been no need for the federal government to step in to the process.

The Supreme Court rejected arguments that the Secretary failed to consider alternatives to vaccination or to support departure from previous ‘encouragement’ — but not requirement — of vaccination.

Even if the Secretary’s considerations and findings could be seen to be flawed, the Supreme Court observed, courts are not to disturb the Secretary’s determinations as arbitrary and capricious where the Secretary has proceeded “within a zone of reasonableness.”  Slip op. (per curiam) at 8 (citation omitted).

Objections to the Secretary’s excusing notice and comment are ill founded, the Court opined, because the arrival of the “flu season” has sufficient specificity to justify haste in implementing the Covid-19 vaccine rule  The Court found it unnecessary for HHS to confer with the states or to develop impact assessments before enacting its rule.

Finally, the vaccine mandate does not prohibit HHS involvement in the supervision or control of participants’ provision of services or the termination of employees, the Court concluded.  If the reading urged were adopted, almost all prior conditions of participation would fail.

A federal agency cannot act outside the power conferred upon it in an emergency, the Court reiterated.  This does not mean, however, that an agency is precluded from exercising authority that the agency has long been recognized to possess when  emergency conditions exist.

We disagree. Justices Thomas, Alito, Gorsuch and Barrett dissent.  The dissenting justices have been unable to locate within the provisions cited by the government the authority to require an estimated ten million workers to submit to an irreversible medical procedure.  Rule-making powers that may be exercised for the administration of Medicare and Medicaid programs have not been shown to have a nexus with vaccination.  Adding to such general management authorities scattered references to ‘health and safety’ in order local such a nexus fares no better.

Bits of this and that. The ‘hodgepodge’ approach, as the dissent characterizes the majority’s analysis,  is not sufficient to support the majority’s finding that authorization for the Covid-19 mandate for healthcare workers exists.  References to health and safety measures found here and there will not suffice to support the kind of global regulatory power exercised here, nor can authority for exercise of such power be implied through ‘catchall’ language referring to undefined “other requirements” relating to health and safety.

Residual authority cannot be creatively implied, for it is a basic rule of statutory construction that where specific terms precede general terms, the general terms must consider matters similar to the specific terms.

General administrative requirements such as the provision of 24-hour services or record keeping cannot support a finding of authority for vaccination of all healthcare workers associated with covered facilities.

The one regulation that the dissent concedes might be relevant concerns infection control in long term care facilities but this relates to general sanitation, not vaccination.

The majority’s reliance on general regulatory powers granted to CMS does not provide evidence that authority to require healthcare employee vaccination exists.  The existence of some regulations does not support the majority’s finding that authority to issue the regulations in issue here has been granted.  Even the infectious disease control provisions concern sterilization and housekeeping and discuss vaccination only in the context of patient request for and consent to vaccination, and have nothing to do with the requirement imposed on employees through the Covid-19 rule.

Success in the Future is not Certain. The dissenting justices are of the opinion that the government applicants for relief from the federal district court stays have failed to demonstrate a strong likelihood of success on the merits, for in such vast measures as are in issue here, Congress must speak clearly, and nothing provided to the Court thus far shows that Congress has done so.

We disagree all the more. Justice Alito, joined by Justices Thomas, Gorsuch and Barrett, has provided a separate dissent.  Justice Alito opines that it is not likely that the federal government wil be able to show that there exists Congressional authorization to the Secretary to command that ten million workers submit to vaccination or lose their jobs.

The regulatory “hodgepodge” and scattered provisions as authorization was not forcefully argued by the government until its reply brief.  Stronger medicine than this is needed to cure the absence of any direct evidence to support legislative delegation to HHS to compel employee vaccinations.

Even if vaccination could be perceived to be authorized, the way in which HHS has conducted itself is fatally defective.  Administrative notice and comment, which is essential to ensuring public participation in rule-making, and which guards against lawmaking by unelected officials, has been undermined here.

Justice Alito, while recognizing that the majority has recognized only a likely hood of success on the merits, fears that the scope of the majority’s conclusions is dangerously broad.  The expansive view of regulatory powers embraced by the majority undermines fundamental principles of administrative law.  This in turn may induce extensive changes in executive branch behavior.

No good cause, no excuse. “Good cause” is necessary to excuse compliance with notice and comment provisions.  While no fixed standards supporting foregoing notice and comment exist, conditions excusing notice and comment require narrow construction.

The rationale for failing to comply with notice and commend procedures offered by the government fails to define what harm would ensue from the delay caused by notice and comment.  The ‘importance of vaccination’ will not in itself, define the harm to be avoided by suspending notice and comment.  It is not credible for HHS to argue that exigency excusing notice and comment exists where vaccines had already been in existence for ten months prior to the rule and millions of workers had been vaccinated by the time the CMS mandated issued.

No harm, yet still foul. CMS’ claim that no one was prejudiced by the failure to adhere to notice and comment  procedures obscures the fact that CMS must demonstrate good cause for doing so.  No requirement exists that respondents demonstrate a lack of good cause.  “No harm done” casts a backward glance that does not provide the good cause needed before suspending notice and comment.

Skipping the essentials bodes ill.  Notice and comment procedures are legislative limits on executive authority intended to ensure that executive agencies consider what they are doing “before restricting the liberty of the people they regulate”.  Alito dissent, slip op at 4.  (citation omitted). The majority’s adoption of CMS’ position endorses a regulate first, then listen approach which is especially dangerous where ten million workers must undergo an irreversible medical treatment or lose their jobs.

Biden v. Missouri, No. 21A240 and Becerra v. Louisiana, No. 21241. Order and Opinion January 13, 2022 (S.Ct.)

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)

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

Federal Court Enjoins Enforcement of Mandated COVID-19 Vaccination of Healthcare Workers, Observing Not Only Authoritative and Procedural Deficiencies in CMS Order But Also Likelihood that Enforcement Would Exacerbate Crisis in Healthcare Access


Missouri, et al. v. Biden, et al., No. 4:21-cv-01329 (E.D. Mo.)  Order and Opinion entered November 29, 2021.

Missouri, et al. v. Biden, et al., No. 4:21-cv-01329 (E.D. Mo.) Defendants’ Notice of Appeal filed November 30, 2021.


The United States District Court for the Eastern District of Missouri has enjoined the federal government from implementing mandated COVID-19 vaccination for healthcare providers and other workers associated with facilities receiving Medicare or Medicaid support.  The United States has filed a notice of appeal from the injunction ordered on November 29th.

The federal trial court observes that the Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS), lacks Congressional authority for the actions it has taken, which because of its sweep would require explicit and clear authority if it authority could be delegated at all in light of the federalism question that the federal intrusion on private citizens’ health care decisions and the disruption of federal-state balance that the vaccine mandate present.  

Moreover, CMS erred in abandoning notice and requirement provisions, as no excuse for having done so, including any alleged emergency, can be found.

Of particular significance to the court is not merely the shift from encouraging to demanding vaccination of healthcare workers and the application of a one-size-fits-all policy without respect to the institution involved but also the threat to access to care that the mandate provides.

Provider institutions already face a shortage in workers that began before but has been compounded by the COVID-19 pandemic. As mandated vaccination may precipitate additional worker shortages, which in turn will impact access to care, the court agrees that the threat of harm to the public because of mandated vaccination merits injunctive relief.

Missouri, et al. v. Biden, et al., No. 4:21-cv-01329 (E.D. Mo.) Order and Opinion November 29, 2021

Missouri, et al. v. Biden, et al., No. 4:21-cv-01329 (E.D. Mo.) Notice of Appeal filed November 30, 2021

Litigation Contagion:  With Thirteen Vaccine Mandate Petitions Consolidated in the Sixth Circuit, OSHA Seeks Emergency Dissolution of Stay Entered by Fifth Circuit


Memoranda concerning the stay of the vaccine mandate, entered by the Fifth Circuit and consolidated in the Sixth Circuit, are due on November 30, with responses due December 7th and replies due December 10.  At this posting, no action has been taken on the government’s motion to expedite briefing.


All together now. With multidistrict litigation underway in the United States Court of Appeals for the Sixth Circuit, the Occupational Safety and Health Administration (OSHA) seeks emergency dissolution of the stay of the Emergency Temporary Standard (the “Vaccine Mandate”) entered by the United States Court #v Appeals for the Fifth Circuit.  Some petitioners object to the administration proceeding on an emergency basis, while others ask that the Sixth Circuit transfer all the proceedings to the Fifth Circuit.

Nationwide Vaccination or Testing Required of Certain Employers Stayed. The OSHA Vaccine Mandate, which requires employers of 100 or more employees to require employee vaccination or testing concerning Covid-19 or face significant fines, which would by its terms take effect on December 6, 2021, was stayed by the United States Court of Appeals for the Fifth Circuit on November 12, 2021.  

Ruling on retention, modification, or dissolution of the stay front and center. The Sixth Circuit, to which all petitions in twelve federal circuits were transferred by order of the Judicial Panel on Multidistrict Litigation, has invited briefing on whether the stay ought to be vacated, amended, or extended.  The federal respondents seek dissolution of the stay on an emergency basis.  Several petitioners seek initial hearing en banc before the federal appellate court.

Constitutional concerns about a measure said to be for the common good.  The Fifth Circuit entered a stay of the Vaccine Mandate based on its perception that the Vaccine Mandate is a sweeping national measure that presents grave constitutional concerns.  In ordering the halt of the mandate, the appellate court, among other determinations, found no statutory authority with which OSHA could create such a measure.  In the absence of explicit authority from Congress, the federal agency exceeded its statutory as well as Commerce Clause powers and encroached on public health rights reserved to the states.  Where OSHA has no authority, in the Fifth Circuit’s view, to regulate a hazard that is not confined to the workplace, OSHA cannot dictate the behavior of individuals using employers as a conduit.

Emergency action is necessary to address potentially lethal health consequences. OSHA argues that the Covid-19 virus has killed hundreds of thousands of people and that OSHA”s gathering of evidence supporting requiring vaccination is empirically sound, and that OSHA”s findings ought not be disturbed by the courts.  The federal government asserts that authority for monitoring contagious diseases was established decades ago with respect to blood-borne pathogens.

Employers hamstrung by compliance, particularly where resistant employees threaten to quit if vaccination required.  Opposing employers resist the government’s position that employers’ estimates of the costs of vaccine compliance are speculative.  Employers resent the government’s determination to proceed on an emergency basis before the Sixth Circuit has developed a comprehensive case management order or ruled on several pending motions for initial review en banc.  

Mandate’s impact not confined to employers and employees Employers stress that the impact of the vaccine mandate, if permitted to take effect, will force employees to choose between their work or their personal autonomy before the year end holidays.  As many essential workers are involved, the impact of the mandate will be felt by the public at large, as goods and services will not be manufactured and provided as planned.

Get litigation back to where it once belonged. While acknowledging that the Sixth Circuit has shown deference to the Fifth Circuit, some petitioners seek transfer of the consolidated multidistrict litigation to the Fifth Circuit, which has, it is argued,  already acquainted itself with the issues in the time sensitive vaccine mandate cases  

JustLawful Note:  Few would dispute that the reach of the vaccination mandate is historic, and it is hardly speculative to believe that the matter will reach the United States Supreme Court, nor is it unreasonable to think that the Sixth Circuit will promptly address the motions now before it. 


Case Materials

BST Holdings, et al. v. Occupational Health and Safety Administration, et al., No. 21-60845 (5th Cir.).  Opinion and Order November 12, 2021.

BST Holdings et al v. OSHA, No. 21-60845 (5th Cir.) Order November 12, 2021

In re. MCP No. 165:  OSHA Rule on COVID-19 Vaccination and Testing, 86 Fed. Reg. 61402, No. 21-7000 (6th Cir.).  Docket as of November 28, 2021.

In re. MCP No. 165,, No. 21-7000 (6th Cir.) Docket as of November 28, 2021

In re:  Occupational Safety and Health Administration Interim Final Rule:  COVID-19 Vaccine and Testing:  Emergency Temporary Standard, 86 Fed. Reg. 61402, Issued November 4, 2021.  United States Judicial Panel on Multidistrict Litigation, MCP No. 165.  Consolidation Order, November 18, 2021.

In re: Occupational Safety and Health Administration Interim Final Rule: COVID-19 Vaccine and Testing: Emergency Temporary Standard, 86 Fed. Reg. 61402, Issued November 4, 2021. United States Judicial Panel on Multidistrict Litigation, MCP No. 165. Consolidation Order, November 18, 2021.

Phillips Manufacturing and Tower Company, et al. v. U.S. Department of Labor, Occupational Safety and Health Administration, No. 21-4028 (6th Cir.) Petition for Initial Hearing en Banc, November 17, 2021.

Phillips Manufacturing and Tower v. OSHA, No. 21-4028 (6th Cir.) Petition for Initial Hearing en Banc, November 17, 2021

In re. MCP No. 165:  OSHA Rule on COVID-19 Vaccination and Testing, 86 Fed. Reg. 61402, No. 21-7000 (6th Cir.). Initial Case Management Order, November 21, 2021.

Initial Case Management Order In re MCP No. 165 OSHA Rule on COVID-19 Vaccination and Testing

In re. OSHA Rule on Covid-19 Vaccination and Testing, 86 Fed. Reg. 61401, No. 21-4018, No. 21-7000 (6th Cir.) Respondents’ Emergency Motion to Dissolve Stay, November 23, 2021.

In re OSHA Rule on Covid-19 Vaccination and Testing, 86 Fed. Reg. 61401, No. 21-4018, No. 21-7000 (6th Cir.). Respondents’ Emergency Motion to Dissolve Stay, November 23, 2021

In re. OSHA Rule on Covid-19 Vaccination and Testing, 86 Fed. Reg. 61401, No. 21-4018, No. 21-7000 (6th Cir.).  Respondents’ Motion to Amend Schedule for Stay Briefing and to Set Schedule for Merits Briefing, November 24, 2021

In re OSHA Rule on Covid-19, Respondents Motion to Amend Schedule for Stay Briefing, No. 21-7000 (6th Cir.) November 24, 2021

In re. MCP No. 165:  OSHA Rule on COVID-19 Vaccination and Testing, 86 Fed. Reg. 61402, No. 21-7000 (6th Cir.). Job Creators’ Network, et al. v. OSHA, et al.  Opposition to Respondents’ Emergency Motion to Dissolve Stay, November 23, 2021.

In re OSHA Rule on Covid-19 Vaccination and Testing, No. 21-7000 (6th Cir.) Job Creators’ Network et al. Opposition to Emergency Motion to Dissolve Stay, November 23, 2021

In re. MCP No. 165:  OSHA Rule on COVID-19 Vaccination and Testing, 86 Fed. Reg. 61402, No. 21-7000 (6th Cir.). Motion to Transfer by BST Holdings, et al., November 23, 2021

In re. MCP No. 165:  OSHA Rule on COVID-19 Vaccination and Testing, 86 Fed. Reg. 61402, No. 21-7000 (6th Cir.). Motion to Transfer by BST Holdings, et al., November 23, 2021

In re. MCP No. 165:  OSHA Rule on COVID-19 Vaccination and Testing, 86 Fed. Reg. 61402, No. 21-7000 (6th Cir.). Motion to Hold in Abeyance Government’s Emergency Motion to Dissolve Stay, November 23, 2021

In re MCP 165 OSHA Rule on Vaccination and Testing, No. 21-7000 (6th Cir.) Motion to Hold in Abeyance Government’s Emergency Motion to Dissolve Stay

In re. MCP No. 165:  OSHA Rule on COVID-19 Vaccination and Testing, 86 Fed. Reg. 61402, No. 21-7000 (6th Cir.).  Order, November 23, 2021.

In re MCP 165, No. 21-7000 (6th Cir.) Order November 23, 2021

From Press Immunity to Impunity: Dissenting Senior U.S. Court of Appeals Judge for D.C. Circuit Suggests Overruling New York Times v. Sullivan

Tah and McClain v. Global Witness Publishing, et al., No. 19-7132 (D.C. Cir.) March 19, 2021.

Defendants Global Witness Publishing and Global Witness (“Global Witness”) published an investigation into bonuses paid to plaintiffs as members of a government entity engaged in negotiating to conclusion an oil lease of unprecedented significance for Liberia. Plaintiffs sued Global Witness for libel as Global Witness’ report on Liberian corruption intimated that the bonuses were bribes.

The United States District Court for the District of Columbia dismissed anti-Slapp proceedings, as federal courts are not bound by the District of Columbia Anti-Slapp Act. This conclusion was affirmed on appeal.

Similarly, the trial court’s dismissal of the libel action because the publication was subject to First Amendment protections. Plaintiffs assertions concerning ‘actual malice’ were without foundation in law, the court found. This conclusion, also affirmed on appeal, generated significant debate among the panelists about the meaning and future of the “actual malice” standard for libel actions concerning public figures, as established in New York Times v. Sullivan, 376 U.S. 254 (1964).

New York Times v. Sullivan insulated the press from suit for defamation for publication or broadcast of arguably defamatory material unless the publication was made with “actual malice,” either a knowledge that the published information was false or a reckless disregard of its truth or falsity. Id. Subsequent to the decision, it has been noted that meeting the “actual malice” standard is difficult, to say the least.

The present Global Witness affirmation of dismissal of plaintiffs’ claims prompted Senior Circuit Judge Silberman to dissent with some force, taking aim not only at currents in jurisprudence but also offering concerns about the consolidation of power in the media and in the technological giants engaging in distribution and curation of online publications.

The “actual malice” standard is unworkable and in this case has been erroneously interpreted, Judge Silberman declared, causing a rift between the D.C. Circuit and the Second Circuit. The standard for dismissal is “whether a complaint is plausible, not whether it is less plausible than another alternative explanation,” quoting Palin v. New York Times, 940 F.3d 804, 815 (2nd Cir. 2019). Dissent, Slip. op. at 15.

More significantly, New York Times v. Sullivan, Judge Silberman offered, echoing the views of Supreme Court Associate Justice Clarence Thomas, was a policy decision presented as interpretation of the Constitution. While it can be argued that the decision was necessary to protect the press from an avalanche of libel suits intended to discourage coverage of civil rights activities, the opinion itself is not jurisprudentially sound, as it is lacking in grounding in the facts and as it departs from centuries of common law. Id.

The Silberman dissent brooks activist judges no mercy. By “constitutionalizing” policy, the Supreme Court has embraced the standards of communist regimes. Once a principle is established, it will not be willingly relinquished. Dissent, Slip. Op. a 16. If comparing the Supreme Court’s actions to those of regimes antithetical to United States’ freedoms were not enough, Judge Silberman next ventured into the theological realm, remarking that an Associate Justice of the Supreme Court had scolded him for a perceived deficiency in regard for the Court. This chiding, Judge Silberman wrote, caused him to sense that the Court is more concerned with “maintaining a veneer of infallibility” than in correcting errors, no matter how far afield the Court had wandered or stepped on the toes of correlative branches. Id.

However much the New York Times v. Sullivan decision sought to promote the freedom of the press at the time the case was decided, today there is great concern, in Judge SIlberman’s mind, about the consolidation of media within one political point of view. Where it was once feared that press consolidation would induce bland homogeneity, that is hardly the case currently, he has observed, as hasty publication of extreme material, with the assurance no liability will ensue, causes no small amount of harm for which, for public figures, there is likely no redress.

When press powers are aligned with technological giants that curate material in line with the political iew of the press, the threat of suppression of ideas is, in Judge Silberman’s view, too real to overlook. While private technological companies are not bound by the First Amendment, suppression of disfavored views strikes the judge as “un-American.” Dissent, Slip. Op. at 22. Where history instructs that control of communication is an essential first step in establishing authoritarian control, the need to consider these issues is pressing indeed, Judge Silberman has written. Dissent, Slip. Op. at 23.

JustLawful Two Cents’ Worth: JustLawful shares the concerns expressed about media “hive mind” and about the capacity of online gatekeepers to work great mischief. JustLawful would never question the power and potency of the manner in which New York Times v. Sullivan has, rightly or not, accorded the press an immunity ordinarily reserved for the sovereign. Yet JustLawful questions whether overruling New York Times v. Sullivan would cause the press to be any more open to divergent thought. Moreover, if New York Times v. Sullivan were overruled with the view in mind to cause openness to divergence of thought, would that not be as much a policy decision as Judge Silberman’s criticism suggests the case has always been?

Tah and McClain v. Global Witness Publishing, Inc. and Global Witness, No. 19-7132 (D.C. Cir.) March 19, 2021.

Never Can Say Goodbye: Judge Mulls Dismissing Flynn Proceedings with Room for Prosecution by “A New Administration”


United States v. Michael T. Flynn, No. 1:17-cr-232 (EGS).  Hearing on government’s motion to dismiss on September 29, 2020.



A hearing was held today on the government’s motion to dismiss proceedings against Gen. Michael T. Flynn, and in particular whether the government may deny it, notwithstanding that the government has represented that there is no case against General Flynn.  The court, persuaded that he had discretion to deny the government’s motion to dismiss, wanted to know from counsel where that discretion began and where it ends.  The court mused about whether dismissal might be granted without prejudice, allowing room for further proceedings by  “a new administration,” or, the court quickly added, perhaps in a continuation of the current administration.

The court’s amicus urged the court not to succumb to the importuning of a coordinate branch, stating that the court ought not tarnish its chambers with dismissal because “the President wants Flynn off the hook.”   

With respect to defendant’s arguments that the government sought to create circumstances in which it would appear that Flynn had lied, amicus offered, “Where ya been?  That’s what they do!”  

[JustLawful aside:  Perhaps amicus, by virtue of his experience in the law, and as a judge, has grown deaf to the appearance of such remarks to those who may be unacquainted with investigative pressures.  “That’s what they do!” suggests that, simply by virtue of a thing being done, it were acceptable.  Were this so, of course, there would be no criminal law at all, and while custom and usage go far in the law, custom and usage are always bounded by the Constitution.]

Amicus assured the judge that the judge had done a good job in summarizing the case.  

Counsel for the government argued the law as well as for the moral dignity of the Department of Justice in its prosecutorial functions.  Counsel argued strenuously that prosecutors may cease prosecution on discovery that there was no basis to proceed, and that this was so in this case, as the facts disclosed to the court revealed.  A senior counsel in the U.S. Attorney’s office expressed distress that the office had been accused of behaving with political motivation, assuring the court that the Department of Justice  acts with integrity, and that includes review if a prosecution seems to have gone awry.

Counsel for General Flynn was last in line for the court’s inquiry, which was preceded by the court’s intimating that counsel had behaved unethically in communicating with the Attorney General when initially retained.  In addition,the court was particularly interested in counsel’s contacts with the President, which counsel disclosed.  Thus the threat of bar disciplinary proceedings was made before counsel was permitted to advocate.  

Counsel for General Flynn asserted that there is no basis in law for the court’s appointment of a private prosecutor in this matter in the guise of an amicus, and noted that the court’s intention to orchestrate the possibility of future prosecutions provided yet more evidence of bias, and moved for recusal of the judge, with written motions to follow.

There will be additional filings by counsel for the defendant as well as by the United States, as the court has asked the Department of Justice to look into what was done with evidence concerning texts between an FBI official and a private attorney.

The court took the matter under advisement, noting how voluminous was the record before him. 

 

A Tangled Web Indeed: United States and General Flynn Submit Evidence Supporting Agreed Upon Motion for Dismissal


United States v. Michael T. Flynn, Crim. No. 17-232 (D.  D.C.).  Hearing on government’s motion to dismiss and court’s appointed amicus’ views on further proceedings to be held on September 29, 2020.


Tomorrow the federal court in the District of Columbia will hear arguments about the government’s motion to dismiss the criminal proceedings against General Michael T. Flynn, and will also hear from the court’s selected amicus.  

Months ago the government moved to dismiss charges against General Flynn, asserting that the government did not wish to proceed and also asserting that any statements in issue were not material.  General Flynn agreed. 

Ordinarily prosecutorial determinations not to proceed are granted.  In General Flynn’s case, the court itself balked, opining that General Flynn ought to be found in contempt for making false statements when entering guilty pleas for making false statements.  The court hired an amicus to advise the court, General Flynn filed a petition for mandamus to the United States Court of Appeals for the District of Columbia Circuit where he initially prevailed, but later failed to obtain the writ, and the matter is again before the judge in the District of Columbia.

The United States does not believe that there exists a basis for further criminal proceedings and has, in support of its position, disclosed the unclassified and/or unprivileged portions of an official memorandum (FD-302) documenting an interview with a Federal Bureau of Investigations agent involved in investigating General Flynn. 

The agent reported that his work did not disclose evidence that would support criminal charges against General Flynn.  Moreover, the agent reported that those in charge of the investigation seemed determined to find a basis or bases for not only charging General Flynn but also discrediting President Trump.  

The collusion collision course:  the collusion, in the legal sense,  sought to be substantiated is not the collusion, in the colloquial sense, that has been revealed.  Not only has an agent involved in the investigation provided his statement and opinions, but the government has, at the eleventh hour, disclosed internal Federal Bureau of Investigation electronic discussions and text exchanges between the FBI’s Chief of Counter Espionage and private lawyer Lisa Page.  Both the internal and external exchanges are disparaging, and the commentary between Strzok and Page exchanges vows to defeat their disfavored candidate.

Just Lawful Prognostication:  The Judge assigned to this case, Hon. Emmet G. Sullivan, having recently had the blessing of the federal appellate court to go forward with examining the government’s motion to dismiss, will not take his obligations lightly.  

While the government’s recent public disclosures are embarrassing, this is not a crime, nor are the opinions of a federal agent, however revealing, of the sort that control prosecutions.  

Judge Sullivan is likely to proceed with caution, taking as much time as he sees fit, to issue a ruling, if any, for there is always the possibility that, having gained traction in this way once before, the judge will seek more investigation, hold more hearings, and conduct further review.

U.S. v. Flynn Government’s Supplemental Filing in Support of Dismissal

U.S. v. Flynn Third Supp Supporting Agreed Upon Dismissal

U.S. v. Flynn 248-1 Strzok and Page Texts

U.S. v. Flynn, ECF 248-2 McCabe Handwritten Notes

U.S. v. Flynn, ECF 248-3 Strzok Handwritten Notes

U.S. v. Flynn, ECF 248-4 Strzok Handwritten Notes