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

Federal District Court in New York Enjoins Pandemic Precautions Restraining Religious Gatherings

Soos, et al. v. Cuomo, et al., No. 1:20-cv-651 (N.D.N.Y.) (GLS/DJS).  (Order granting injunctive relief entered June 26, 2020).


Since the inception of public health concerns about potential harms should coronavirus (COVID-19) contamination be left unchecked, New York state and city officials have issued not less than seventeen orders dictating who may congregate where and for what purposes.  Religious services fell among the most rigidly curtailed events.

Notwithstanding harms predicted to ensue from close unprotected contact with others, in June mass protests erupted across the United States.

Thousands gathered in New York without official objection.  The governor counseled citizens to be “smart” by practicing social distancing.  It has been reported that, apparently without further elaboration, the Mayor of New York opined that protesting racism presented a “different  question” than did religious events, certain of which he had previously vociferously condemned.

On motion brought by religious leaders, the United States District Court for the Northern District of New York declined to find the public health orders to be “neutral laws of general applicability” presumed to be constitutionally sound even if such laws incidentally burden religion.

The state and local course of conduct created de facto exemptions specifically inhibiting the free exercise of religion, the court found.  The court could not identify a compelling interest which would justify any distinction that would permit public gatherings for some purposes but not for religious purposes. Where irreparable harm could be presumed to flow from the prevention of religious free exercise rights, the court enjoined enforcement of any indoor restrictions greater than those imposed on non-essential entities and any outdoor restrictions.  In both indoor and outdoor settings, social distancing precautions are to be employed.

Soos v. Cuomo No. 20-cv-00651 (N.D.N.Y.) Order June 26 2020