Flash Report: Vaccine Mandate & Executive Order Spur Litigation

By: Mark Webb

As anticipated, the actions by the federal Occupational Safety and Health Administration (OSHA) and President Biden in his Executive Order 14042, “Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors” have unleashed a flurry of litigation across the country.

Here is an update and breakdown:

The case getting the most attention at this point in time is BST Holdings et al., v. Occupational Safety and Health Administration, et al. (2021), 21-60845, in the United States Court of Appeals for the Fifth Circuit. While a private company is the lead petitioner in this case, the states of Texas, Louisiana, Mississippi, South Carolina and Utah are among the petitioners seeking to overturn OSHA’s Emergency Temporary Standard (ETS).

Much has been made of the stay pending full judicial review of the ETS issued by the 5th Circuit on November 12th. Perhaps too much.

While not “full judicial review”, the three-judge panel continuing the stay did not mince words about what it thought about the ETS. Per Circuit Judge Kurt D. Engelhardt, who wrote the majority opinion:

“Indeed, the Mandate’s strained prescriptions combine to make it the rare government pronouncement that is both overinclusive (applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) and underinclusive (purporting to save employees with 99 or more coworkers from a “grave danger” in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat).”

A word regarding procedure is in order. Under the Federal Rules of Appellate Procedure, and the OSHA statues themselves, 29 USC § 655(f), petitions to review an agency order are commenced by filing, within the time prescribed by law, with the clerk of a court of appeals authorized to review the agency order. This is why the Court of Appeals for the Fifth Circuit is hearing the BTS Holdings case. But then, the issue of the legality of the ETS is also before the Eight Circuit Court of Appeals in the case of State of Missouri et al. v. Biden et al.(2021), 21-3494 in which the states of Missouri, Arizona, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, and Wyoming are among the petitioners. The Eleventh Circuit Court of Appeals is addressing the same issue in State of Florida et al. v, Occupational Safety and Health Administration et al., (2021), 21-13866. Florida is joined by Alabama and Georgia seeking relief. In each of these cases, there are numerous private parties petitioning the courts as well.

There are additional petitions. In the Sixth Circuit Court of Appeals, Commonwealth of Kentucky, et al. v. Occupational Safety and Health Administration et al., (2021), 21-4031, Kentucky and the states of Idaho, Kansas, Ohio, Oklahoma, Tennessee, and West Virginia are participating. The Seventh Circuit Court of Appeals is dealing with the State of Indiana v. Occupational Safety and Health Administration et al., (2021), 21-3066. These cases are ones in which various states have joined. There are more petitions in several circuits filed by private parties.


One might think all of these filings would create the potential for major conflict and confusion among the courts.  Except that Congress has set forth procedures governing the situation when multiple petitions for review of a single agency order (ETS) are filed in at least two courts of appeals within ten days after issuance of the order.

That is the case here. It is the responsibility of the Judicial Panel on Multidistrict Litigation to commence the process in which one of the courts of appeals in which petitions have been filed is designated as the one court in which all petitions will be consolidated.

On November 16th, the Consolidation Order assigned the challenges to the ETS to the Sixth Circuit Court of Appeals. As noted in the Consolidation Order, there were petitions pending in the District of Columbia Circuit Court, First Circuit Court, Second Circuit Court, Third Circuit Court, Fourth Circuit Court, Fifth Circuit Court, Sixth Circuit Court, Seventh Circuit Court, Eighth Circuit Court, Ninth Circuit Court, Tenth Circuit Court and Eleventh Circuit Court.

The process challenging the President’s Executive Order is a different one. Cases brought by various states are currently pending in United States District Courts in Missouri, Georgia, Texas, and Florida. Many of the same states involved in challenging the ETS are also challenging the Executive Order. There are undoubtedly additional cases pending in various courts.

Both the ETS and Executive Order challenges have at their core the argument that the actions by OSHA and the President exceed the authority of the laws cited to authorize them.

As was seen in the short-lived legal challenge to the Cal/OSHA ETS, the courts are reluctant to overturn orders adopted in response to a public health crisis. In the cases of the current legal challenges, there are many complex issues involved with both the ETS and the Executive Order. It will be up to the courts, or possibly the United States Supreme Court, to sort these out, and to do so quickly.