BST Holdings v. Occupational Safety & Health Admin.

• Decision Date: 12 November 2021
• Docket Number: No. 21-60845,21-60845
• Citation: 17 F.4th 604
• Parties: 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; doing business as 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, doing business as Daystar Television Network, Petitioners, v. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR; 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.
• Court: U.S. Court of Appeals — Fifth Circuit

17 F.4th 604

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; doing business as 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, doing business as Daystar Television Network, Petitioners,

v.OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR; 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.

No. 21-60845

United States Court of Appeals, Fifth Circuit.

FILED November 12, 2021

Daniel Robert Suhr, Jeffrey Jennings, Liberty Justice Center, Chicago, IL, Sarah Harbison, Pelican Institute for Public Policy, New Orleans, LA, for Petitioners 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, and Kip Stovall.

Jeffrey Carl Mateer, Esq., General Counsel, First Liberty Institute, Plano, TX, for Petitioner Answers in Genesis, Incorporated.

Jeffrey Carl Mateer, Esq., General Counsel, First Liberty Institute, Plano, TX, David J. Hacker, Lea Patterson, Keisha Russell, Hiram Stanley Sasser, III, First Liberty Institute, Plano, TX, for Petitioners American Family Association, Incorporated, and Word of God Fellowship, Incorporated.

Matthew R. Miller, Esq., Robert E. Henneke, Texas Public Policy Foundation, Austin, TX, for Petitioners Burnett Specialists, Choice Staffing, L.L.C., Staff Force, Incorporated, Leadingedge Personnel, Limited, and HT Staffing, Limited.

Judd Edward Stone, II, Ryan Baasch, William Francis Cole, Esq., Lanora Christine Pettit, Benjamin D. Wilson, Office of the Attorney General, Office of the Solicitor General, Austin, TX, Leif A. Olson, Office of the Attorney General, Austin, TX, for Petitioner State of Texas.

Elizabeth Baker Murrill, Esq., Assistant Attorney General, Office of the Attorney General for the State of Louisiana, Baton Rouge, LA, Joseph Scott St. John, Louisiana Department of Justice, Office of the Solicitor General, New Orleans, LA, for Petitioner State of Louisiana.

John Stone Campbell, III, John Parham Murrill, Taylor, Porter, Brooks & Phillips, L.L.P., Baton Rouge, LA, for Petitioners Cox Operating, L.L.C., Dis-Tran Steel, L.L.C., Dis-Tran Packaged Substations, L.L.C., Beta Engineering, L.L.C., and Optimal Field Services, L.L.C.

Justin Lee Matheny, Esq., Office of the Attorney General for the State of Mississippi, Jackson, MS, Scott Stewart, Mississippi Attorney General's Office, Jackson, MS, for Petitioner State of Mississippi.

Aaron Randall Rice, Attorney, Mississippi Justice Institute, Jackson, MS, for Petitioner Gulf Coast Restaurant Group, Incorporated.

Thomas T. Hydrick, Office of the Attorney General for the State of South Carolina, Columbia, SC, for Petitioner State of South Carolina.

Melissa A. Holyoak, Senior Counsel, Office of the Attorney General for the State of Utah, Salt Lake City, UT, for Petitioner State of Utah.

Steven Paul Lehotsky, Lehotsky Keller, L.L.P., Washington, DC, Scott A. Keller, Lehotsky Keller, L.L.P., Austin, TX, for Petitioners Texas Trucking Association, Mississippi Trucking Association, Louisiana Motor Transport Association, American Trucking Associations, Incorporated, National Federation of Independent Business, National Retail Federation, FMI-The Food Industry Association, National Association of Convenience Stores, National Association of Wholesaler-Distributors, International Warehouse & Logistics Association, and International Foodservice Distributors Association.

Martin Vincent Totaro, Brian James Springer, U.S. Department of Justice, Civil Division, Appellate Section, Washington, DC, Edmund C. Baird, Kate S. O'Scannlain, Thomas E. Perez, Marisa C. Schnaith, U.S. Department of Labor, Office of the Solicitor, Washington, DC, for Respondents.

John J. Bursch, Bursch Law, P.L.L.C., Caledonia, MI, for Amicus Curiae Bentkey Services, L.L.C.

Sheng Tao Li, Washington, DC, for Amicus Curiae New Civil Liberties Alliance.

Jeffrey B. Dubner, Rachel Fried, Jessica Morton, Democracy Forward Foundation, Washington, DC, for Amicus Curiae American Medical Association.

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.¹ Six were challenged in court; only one survived.² 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.³ An array of petitioners seeks a stay barring OSHA from enforcing the Mandate during the pendency of judicial review. On November 6, 2021, we agreed to stay the Mandate pending briefing and expedited judicial review. Having conducted that expedited review, we reaffirm our initial stay.

I.

OSHA promulgated its much anticipated⁴ 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.

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. For ease of judicial review, and in light of the pressing need to act immediately, we consolidated our court's petitions under the case number captioned above.

Many of the petitioners are covered private employers within the geographical boundaries of this circuit.⁵ Their standing⁶ 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.⁷

II.

The "traditional stay factors ... govern a request for a stay pending judicial review." Nken v. Holder , 556 U.S. 418, 426, 129 S.Ct. 1749, 173 L.Ed.2d 550 (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, 107 S.Ct. 2113, 95 L.Ed.2d 724 (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.

We begin by stating the obvious. The Occupational Safety and Health Act, which created OSHA, was enacted by Congress to assure Americans "safe and healthful working conditions and to preserve our human resources." See 29 U.S.C. § 651 (...