## United States Court of Appeals for the Fifth Circuit
No. 21-60845
BST Holdings, L.L.C.; RV Trosclair, L.L.C.; Trosclair Airline, L.L.C.; Trosclair Almonaster, L.L.C.; Trosclair and Sons, L.L.C.; Trosclair; Trosclair, Incorporated; Trosclair Carrollton, L.L.C.; Trosclair Claiborne, L.L.C.; Trosclair Donaldsonville, L.L.C.; Trosclair Houma, L.L.C.; Trosclair Judge Perez, L.L.C.; Trosclair Lake Forest, L.L.C.; Trosclair Morrison, L.L.C.; Trosclair Paris, L.L.C.; Trosclair Terry, L.L.C.; Trosclair Williams, L.L.C.; Ryan Dailey; Jasand Gamble; Christopher L. Jones; David John Loschen; Samuel Albert Reyna; Kip Stovall; Answers in Genesis, Incorporated; American Family Association, Incorporated; Burnett Specialists; Choice Staffing, L.L.C.; Staff Force, Incorporated; Leadingedge Personnel, Limited; State of Texas; HT Staffing, Limited (d/b/a HT Group); The State of Louisiana; Cox Operating, L.L.C.; Dis-Tran Steel, L.L.C.; Dis-Tran Packaged Substations, L.L.C.; Beta Engineering, L.L.C.; Optimal Field Services, L.L.C.; The State of Mississippi; Gulf Coast Restaurant Group, Incorporated; The State of South Carolina; The State of Utah; Word of God Fellowship, Incorporated (d/b/a Daystar Television Network),
Petitioners,
versus
Occupational Safety and Health Administration, United States Department of Labor; Martin J. Walsh, Secretary, U.S. Department of Labor; Douglas Parker, in his Official Capacity as Assistant Secretary of Labor for Occupational Safety and Health,
Respondents.
Petition for Review of Occupational Safety and Health Administration Emergency Temporary Standard
Before JONES, DUNCAN, and ENGELHARDT, Circuit Judges.
KURT D. ENGELHARDT, Circuit Judge:
The Occupational Safety and Health Administration (“OSHA”) “reasonably determined” in June 2020 that an emergency temporary standard (“ETS”) was “not necessary” to “protect working people from occupational exposure to infectious disease, including COVID-19.” In re AFL-CIO, 2020 WL 3125324, at 1 (D.C. Cir. June 11, 2020). This was not the first time OSHA had done this; it has refused several times to issue ETSs despite legal action urging it do so. See, e.g., In re Int’l Chem. Workers Union, 830 F.2d 369 (D.C. Cir. 1987) (per curiam). In fact, in its fifty-year history, OSHA has issued just ten ETSs. Six were challenged in court; only one survived.
The reason for the rarity of this form of emergency action is simple: courts and the Agency have agreed for generations that “[e]xtraordinary power is delivered to [OSHA] under the emergency provisions of the Occupational Safety and Health Act,” so “[t]hat power should be delicately exercised, and only in those emergency situations which require it.” Fla. Peach Growers Ass’n v. U.S. Dep’t of Lab., 489 F.2d 120, 129–30 (5th Cir. 1974).
This case concerns OSHA’s most recent ETS—the Agency’s November 5, 2021 Emergency Temporary Standard (the “Mandate”) requiring employees of covered employers to undergo COVID-19 vaccination or take weekly COVID-19 tests and wear a mask. An array of petitioners seeks a stay barring OSHA from enforcing the Mandate during the pendency of judicial review.
Having conducted an expedited review, we reaffirm our initial stay.
I.
OSHA promulgated its much anticipated vaccine mandate on November 5, 2021. Framed as an ETS, the Mandate requires all employers of 100 or more employees to “develop, implement, and enforce a mandatory COVID-19 vaccination policy” and require any workers who remain unvaccinated to “undergo [weekly] COVID-19 testing and wear a face covering at work in lieu of vaccination.” 86 Fed. Reg. 61,402, 61,402 (Nov. 5, 2021) (to be codified at 29 C.F.R. pts. 1910, 1915, 1917, 1918, 1926, and 1928).
On the afternoon of the Mandate’s publication, a diverse group of petitioners (including covered employers, States, religious groups, and individual citizens) moved to stay and permanently enjoin the mandate in federal courts of appeals across the nation. Finding “cause to believe there are grave statutory and constitutional issues with the Mandate,” we intervened and imposed a temporary stay on OSHA’s enforcement of the Mandate.
Many of the petitioners are covered private employers within the geographical boundaries of this circuit. Their standing to sue is obvious—the Mandate imposes a financial burden upon them by deputizing their participation in OSHA’s regulatory scheme, exposes them to severe financial risk if they refuse or fail to comply, and threatens to decimate their workforces (and business prospects) by forcing unwilling employees to take their shots, take their tests, or hit the road.
The petitioners seek a stay—and ultimately a permanent injunction—of the Mandate’s enforcement pending full judicial review of the Mandate. We address their request for a stay today.
II.
The “traditional stay factors . . . govern a request for a stay pending judicial review.” Nken v. Holder, 556 U.S. 418, 426 (2009). Under the traditional stay standard, a court considers four factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Hilton v. Braunskill, 481 U.S. 770, 776 (1987).
Each of these factors favors a stay here.
A.
We first consider whether the petitioners’ challenges to the Mandate are likely to succeed on the merits. For a multitude of reasons, they are.
Statutory Challenges: The petitioners argue that OSHA exceeded its statutory authority by issuing the Mandate without following proper rulemaking procedures and without making specific findings justifying an ETS. They also contend that the Mandate violates the Administrative Procedure Act (“APA”) because it is arbitrary and capricious. These arguments have merit. As we have previously held, “[t]he plain text of [the Occupational Safety and Health Act] does not authorize OSHA to issue emergency temporary standards without adhering to the APA’s notice-and-comment rulemaking requirements.” Asbestos Info. Ass’n/N. Am. v. OSHA, 727 F.2d 415, 418 (5th Cir. 1984).
* Constitutional Challenges: The petitioners also raise constitutional challenges to the Mandate, arguing that it violates their right to due process and free speech under the First Amendment. They contend that forcing employees to get vaccinated or face weekly testing infringes on their bodily autonomy and freedom of association. These arguments are not insubstantial.
B.
The second factor—whether the petitioners will suffer irreparable harm absent a stay—also weighs heavily in favor of granting a stay. The Mandate imposes significant financial burdens upon covered employers, exposes them to severe penalties for noncompliance, and threatens to decimate their workforces. These harms are irreparable because they cannot be adequately compensated by money damages.
C.
The third factor—whether a stay will substantially injure other parties—is neutral in this case. While the Mandate aims to protect public health, it imposes significant costs on covered employers and employees who object to vaccination or testing. However, these costs are not unique to the petitioners; they are shared by all covered entities.
D.
Finally, we consider where the public interest lies. The public has a strong interest in protecting public health during a pandemic. But it also has an interest in ensuring that regulatory agencies act within their statutory authority and do not infringe on individual liberties without due process. Balancing these interests, we conclude that the public interest favors granting a stay pending judicial review.
Conclusion.
For these reasons, we reaffirm our initial stay of OSHA’s November 5, 2021 Emergency Temporary Standard. We will issue a formal order shortly.
