Pandemic Timeline

Judgments, Uncategorized

U.S. Fifth Circuit Court of Appeals tells OSHA to stand down on vaccine mandates

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This case has not been decided at the time of this writing.

Because the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate, the Mandate is hereby STAYED pending further action by this court.

— November 6, 2021, United States Court of Appeals for the Fifth Circuit

On November 12, 2021, the court ordered to extend the stay.

We first consider whether the petitioners’ challenges to the Mandate are likely to succeed on the merits. For a multitude of reasons, they are.

…

The Mandate’s stated impetus—a purported “emergency” that the entire globe has now endured for nearly two years,10 and which OSHA itself spent nearly two months responding to11—is unavailing as well. And its promulgation grossly exceeds OSHA’s statutory authority.

After the President voiced his displeasure with the country’s vaccination rate in September,12 the Administration pored over the U.S. Code in search of authority, or a “work-around,”13 for imposing a national vaccine mandate. The vehicle it landed on was an OSHA ETS. The statute empowering OSHA allows OSHA to bypass typical notice-and-comment proceedings for six months by providing “for an emergency temporary standard to take immediate effect upon publication in the Federal Register” if it “determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.” 29 U.S.C. § 655(c)(1).

— November 12, 2021, United States Court of Appeals for the Fifth Circuit

In the order, the three-judge panel from the Fifth Circuit said:

  • “the Mandate [is] fatally flawed on its own terms.”
  • “The Mandate’s stated impetus—a purported ‘emergency’ that the entire globe has now endured for nearly two years, and which OSHA itself spent nearly two months responding to—is unavailing as well.”
  • “The Mandate threatens to substantially burden the liberty interests of reluctant individual recipients put to a choice between their job(s) and their jab(s).
  • It “is critical to note that the Mandate makes no serious attempt to explain why OSHA and the President himself were against vaccine mandates before they were for one here.”
  • “OSHA’s attempt to shoehorn an airborne virus that is both widely present in society (and thus not particular to any workplace) and non-life-threatening to a vast majority of employees into a neighboring phrase connoting toxicity and poisonousness is yet another transparent stretch.”
  • “health agencies do not make housing policy, and occupational safety administrations do not make health policy”
  • “the petitioners’ motion for a stay pending review is GRANTED. Enforcement of the Occupational Safety and Health Administration’s “COVID-19 Vaccination and Testing; Emergency Temporary Standard” remains STAYED pending adequate judicial review of the petitioners’ underlying motions for a permanent injunction. In addition, IT IS FURTHER ORDERED that OSHA take no steps to implement or enforce the Mandate until further court order.”

— November 12, 2021, Press Release

The National Law Review mentions this case as if it is included in the bundle that will now be heard by the U.S. Sixth Circuit Court of Appeals, and so I assume that this case is now part of the bundled case that will be tried by the U.S. Sixth Circuit Court of Appeals.  At this time, I am still waiting for the Liberty Justice Center to comment on this new turn of events.

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