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

A Vaccination Compliance Cauldron: Ten States Insist Federal Covid-19 Healthcare Providers’ Mandate Is Constitutionally, Statutorily, and Procedurally Unsound

Missouri, et al. v. Biden, et al., No. 21-cv-01329 (E.D. Mo.). Complaint filed November 20, 2021.


Ten states have joined in challenging the action of the United States Department of Health and Human Services (HHS), Centers for Medicare and Medicaid Services (CMS) in promulgating an Interim Final Rule with Comment Period (IFC) that conditions health care providers’ receipt of federal funding and reimbursement on employee or contractor vaccination against COVID-19.  

Providers and Employees Threatened. Health care providers whose employees fail to comply with the federally mandated demand that all health care workers be vaccinated against Covid-19 may lose federal funding,   As vaccination refusal will threaten employer compliance with the federal measure, unvaccinated employees may lose their jobs.

Exacerbation, Not Mitigation.  The states submit that this sweeping federal incursion on health care administration threatens to exacerbate an already extant crisis in health care provision, which crisis only deepened during the COVID-19 pandemic, forcing states to undertake drastic measures to ameliorate the deadly synergies of two crises which individually would have sufficed to cause health care services to crater. 

          To the extant shortage of workers and threat of harm from viral infection the federal government has added a compliance burden that, the states contend, violates the interests of the states, the healthcare providers and entities within the states, and the healthcare workers who must submit to vaccination or face termination. 

State Standing.  Having brought their complaint in the United States District Court for the Eastern District of Missouri, the states and their attorneys general assert standing premised on exercise of parens patriae powers or statutory authorizations. 

Effective Immediately.  The Interim Final Rule, also called  the CMS vaccine mandate, became effective on publication on publication in the Federal Register on November 5th.  Its protocol demands at least partial vaccination compliance by the first week of December, a deadline that only compounds the problems the rule has caused, the states note.  

          Most significantly, the states argue, the Interim Final Rule is not merely factually detrimental to the provision of health care services, the rule itself and the manner in which the rule was crafted is in violation of central components of the Administrative Procedures Act (APA) and the United States Constitution.

The CMS Vaccine Mandate Makes Matters Worse.  The complaining states assert that the sweeping federal incursion on providers’ rights will exacerbate and extant shortage of workers.  The federal scheme is an unconstitutional abridgment of rights traditionally reserved to the states, and is not only legally flawed but also is, as a practical matter, administratively disastrous, as the health care needs of densely populated urban areas are markedly varied from those of rural settings.  

The CMS vaccine mandate must be set aside.  The states ask that the federal court declare the CMS vaccine rule be declared invalid constitutionally and in violation of the Administrative Procedures Act (APA) and other statutes, and that its enforcement be enjoined.

Not an overnight development.  Healthcare workforce shortages predate the COVID-19 pandemic by decades, the states recount.  Nursing shortages, already critical, have been made all the more so by the demands for urgent and other care precipitated by the pandemic. Many nursing professionals feel they cannot continue to work as they have been.  Many have been attracted to positions offering better working conditions are higher compensation. 

          Staffing shortages threaten the capacity of hospitals to administer care.  To address pandemic care needs, states relaxed standards for the provision of services, permitted workers to work without vaccination, and expanded telehealth services.

          The states are critical of the implementation of the administrative rule per see where doing so represents and Executive Branch about face from federal non-involvement in vaccination to a nationwide push for COVID-19 vaccination compliance that threatens workers with loss of employment and provider entities with loss of available federal funding.   

Reaching beyond providers.  Where health care workers cannot work, providers will be unable to provide services, and the patient public will be denied care.  Each of these outcomes, the states observe, is contrary to sound policies of health care delivery.

A diverse panoply of providers under a single rubric.   There are fifteen categories of Medicare and Medicaid providers, encompassing urban and rural clinics, hospitals, long-term care facilities, and home health agencies. 

          CMS reports that nearly all hospitals within the United States are connected in some measure to Medicare and Medicaid.  Although CMS has recognized the diverse purposes and practices of these categories of providers and suppliers, CMS has embroidered on all covered providers and suppliers the measures applicable to long-term care facilities, the states observe. 

          Moreover, CMS appears to recognize the adverse consequences of the vaccine mandate:  failure to comply will threaten health care workers with loss of employment, which in turn will deepen an already critical worker shortage, which in turn will impact access to care.

No comment.  The states point out that there has never before been a federal vaccination mandate, and that the newly-effective rule is unsound on multiple grounds.  The states notes that CMS abandoned the comment period ordinarily required for rules of the magnitude of the unprecedented healthcare vaccine mandate.  Moreover, CMS has failed to locate with accuracy its authority to promulgate the vaccine mandate.

Unauthorized rule-making. The states argue that there is no statutory authority for the CMS vaccine mandate, and that none of the authorities cited by the CMS as authorizing the mandate do so.  This legally unsupported rule will cause the states great economic harm, particularly as states will not only be threatened with loss of federal resources but the states’ own administrative resources have been conscripted to serve the federal government. 

Hindsight unavailing.  The states submit that the CMS has relied on post-hoc rationalizations to support the rule, an impermissible approach which renders the measure arbitrary, capricious, and not in accordance with law. 

Constitutionally intrusive.  The states argue that compulsory vaccination is traditionally a power reserved to the states.  The federal expansion of power over the states violates the Tenth Amendment, the states submit.

Doctrinally unsound.  The states argue that the CMS vaccine mandate is unsound as it is a measure of national breadth and depth that is not supported by clear Congressional directive, and thus runs afoul of the major questions doctrine.   Similarly, the co of a Congressional articulation of an intelligible guiding principle, the CMS vaccine rule violates principles of non-delegation.

Outside professional bounds.  The states observe that the CMS vaccine mandate is precluded by the Social Security Act, which forbids supervision or control over the practice and provision of medicine and medical services.

Procedurally flawed.  The states submit that the Administrative Procedures Act (APA) is not inaptly named, and that no sound excuse exists for CMS’ failure to adhere to notice and comment procedures which permit interested persons’ participation in administrative processes.  

          CMS not only failed to adhere to these processes but its rule became effective on publication with initial compliance to be completed within thirty days.  Additionally, CMS failed to comply with the sixty-day pre-publication requirement of the Social Security Act.  

Input not sought.  CMS failed to confer with the states concerning the mandate as it is required to do.

Unconstitutional conditions imposed.   The federal government may not impose conditions on funding unrelated to the programs impacted or without notice to the states that vaccination would be required in order to obtain federal funds.  

State resources conscripted.  In enacting measures which threaten providers’ finances through demands on employees, the states observe that is is an infringement on state powers for the federal government to demand that state administrative resources be expended in service of federal aims.

Declaratory and injunctive relief sought: looking forward. The states have requested declaratory and injunctive relief which would nullify the CMS vaccine mandate and prohibit its enforcement.  At this writing the federal court has not issued any orders relating to the case, although in light of the abbreviated time frame for compliance with the CMS vaccine mandate, it is anticipated that there will be activity related to this case soon.  

Missouri, et al. v. Biden, et al., No. 21-cv-01329 (E.D. Mo.) Complaint






As Vaccination Regulation Litigation Erupts, the Fifth Circuit Stays Mandate Pending Expedited Briefing


 

BST Holdings, et al. v. Occupational Safety and Health Administration, United States Department of Labor, No. 21-60845 (5th Cir.). Per curiam order entered November 6, 2021.


 

On Friday, November 5, both the U.S. Department of Labor, Occupational Safety and Health Administration (OSHA) and the U.S. Department of Health and Human Services, Center for Medicare and Medicaid Services (CMS) published regulations in the federal register respectively governing mandatory Covid-19 vaccination or testing and masking for employees of certain employers and governing mandatory vaccination within health care providing entities, the failure to comply with which would threaten federal financial support.

The same day, litigation challenging the labor based regulations was filed in four federal circuit courts of appeal. At this time, there are no known proceedings challenging the CMS regulation, although some have promised that litigation will be commenced.

The United States Court of Appeals for the Fifth Circuit, perceiving that the litigation presents “grave” issues of statutory and constitutional law, today stayed the mandate pending expedited briefing, to be completed by Tuesday, November 9.

The challengers in the Fifth Circuit are private employers impacted by the federal vaccine mandate, which governs entities with one hundred or more employees These private entities have been joined by several states.

The challengers argue that the OSHA Emergency Temporary Standard which is proffered as the premise for mandating vaccination does not and cannot support that demand, as the authority of OSHA is limited to workplace hazards and dangers which would place a virus beyond its scope.

Even if it could be seen that regulation might be possible, it would be constitutionally impermissible on these facts, the challengers assert, as the present federal vaccination scheme does not touch upon interstate commerce, as any exercise of such powers in the absence of a defined Congressional standard violates the non-delegation doctrine, and as the power to address questions of public health in the manner envisioned here is reserved to the states for administration under the Tenth Amendment of the United States Constitution. Moreover, the authority of the Department of Labor is constrained to administration of employment and work related matters, and it is beyond the scope of its powers to regulate individual health choices in the guise of imposing an obligation on employers.

Challenges to the new federal measures in other circuits raise additional claims, submitting to the courts that the vaccine mandate offends the First Amendment and the Religious Freedom Restoration Act.

In that there is a limited period of time within which to challenge these regulations, it is likely that these cases will unfold quickly. It is less likely, however, that any of the litigation will ‘skip a grade’ and proceed on an emergency basis to the U.S. Supreme Court. In recent weeks the Supreme Court has on three occasions declined to hear petitions for emergency relief concerning vaccination mandates.

All this unfolds amid multiple challenges in other forums, not the least of which are challenges to regulations extending mandated vaccination beyond federal employees to employees of federal contractors.

The “headline power” of the private employer mandate discussed here ought not obscure the significance of any of the other litigation concerning the sweeping exercise of federal powers premised on a perceived public health emergency in itself has been called into question.

Order of the United States Court of Appeals for the Fifth Circuit:

BST Holdings, et al. v. OSHA, No. 21-60845 (5th Cir.). Per curiam order entered November 6, 2021_

Challenges to the OSHA Emergency Temporary Standard (ETS):

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

Commonwealth of Kentucky, et al. v. OSHA (6th Cir.) Petition Filed November 5, 2021

State of Missouri, et al., v. Joseph R. Biden, President of the United States, et al. (8th Cir.) Petition Filed November 5, 2021

State of Florida, et al. v. OSHA (11th Cir.) Petition Filed November 5, 2021