The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The Volokh Conspiracy

Vaccine mandates

Federal Court Temporarily Stays OSHA Employer Vaccination Mandate

The stay may only last a very short time. But it does suggest the judges think the plaintiffs have a serious case to make against the mandate.


(Angellodeco |

Today, the US Court of Appeals for the Fifth Circuit issued a stay of the the Occupational Health and Safety Administration's (OSHA) newly announced Emergency Temporary Standard (ETS) mandate COVID-19 vaccination or testing combined with masking in private workplaces controlled by employers with 100 or more employees. Here is the short ruling in its entirety:

Before the court is the petitioners' emergency motion to stay enforcement of the Occupational Safety and Health Administration's  November 5, 2021 Emergency Temporary Standard(the "Mandate") pending expedited judicial review.

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.

The Government shall respond to the petitioners' motion for a permanent injunction by 5:00 PM on Monday, November 8. The petitioners shall file any reply by 5:00 PM on Tuesday, November 9.

So ordered.

The order was issued per curiam, on behalf of all three judges on the panel (all of whom are conservative Republican nominees, for those keeping track). The stay of the mandate is only temporary. And—as the court suggests—may be lifted after "expedited judicial review," which could happen very soon, given the accelerated briefing schedule laid out in order.

This case was filed by a group of employers and several GOP-controlled state governments. They likely chose the Fifth Circuit because they hoped its relatively conservative orientation would give them a greater chance of winning. An unusual statutory provision allows this case to be filed directly in a federal appellate court, as opposed to first having to be heard by a trial court (like nearly all other federal civil suits).

I said previously that, while I think the vaccination mandate has significant legal vulnerabilities and might set a dangerous precedent if upheld, I also don't really know how courts will react to the legal arguments against it. We still don't know the answer to that question with anything like certainty. But the Fifth Circuit's statement that "the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate" is at least a sign that the judges think there is a serious case to be made against the mandate. They clear do not believe the case is a slam dunk for the federal government.

Even if the Fifth Circuit panel ultimately rules against the Biden administration, that won't necessarily be the end of the legal battle over this issue. Much depends on how broad the ruling is, and on what grounds. It's possible OSHA could respond to a narrow ruling against it by limiting the scope of the mandate or adjusting it in some other way. It's also possible that a lower-court ruling against OSHA might be reversed or limited by the Supreme Court.

This is just the beginning of the legal battle over the OSHA ETS vaccination mandate. The agency might yet overcome this initial setback. Still, if I were an administration lawyer, I wouldn't be very happy right now. If a panel of federal circuit court judges says the policy you are defending may have "grave statutory and constitutional issues," that's rarely a good sign for your case.

In previous posts on the administration's vaccination mandate policy, I have noted that some of their other vaccine mandates (e.g.—those covering federal employees) are on relatively firm legal ground, and that I am sympathetic to the moral and policy case for vaccine mandates in some situations (see here and here). But I also believe the OSHA employer mandate is a case of executive overreach, and might set a dangerous precedent, if upheld. We may soon learn whether and to what extent the Fifth Circuit agrees with that assessment.

Free Speech

"May Courts Order Public Records Requesters to Return Mistakenly Released Documents?"


A very interesting speech-restrictive injunction case, described by Paul Alan Levy (Public Citizen):

In releasing documents electronically pursuant to a public records request, a local government body in New Jersey made a rookie error: using Word to perform redactions in a manner that was easily undone when the requester opened the documents on his own device. The documents revealed some settlement discussions between the government body and a local developer, as well as a sleazy effort to avoid disclosure by proceeding ex parte to secure confidentiality from a local judge who was hearing a lawsuit about the development controversy.

In response to a motion not served on the counsel for the requester, a known opponent, the judge gave her advance blessings to confidentiality under the Public Records Act. When the developer discovered the redaction error (because a member of the public angrily discussed the documents at a public meeting), the developer rushed into court and persuaded the judge to issue a restraining order barring the requester from disseminating the documents and demanding both return of the documents and identification of everybody to whom the requester has given copies of the documents.

In similar circumstances, some FOIA requesters reflexively cooperate when agencies promptly ask for return of inadvertently released documents, but does the First Amendment authorize courts to order a clawback if the requester refuses?

In a motion to dissolve the restraining order, the requester argues no, citing such cases as Florida Star v. BJFSmith v Daily Mail and Bartnicki v. Vopper, and arguing as well that the injunction is a prior restraint and that the demand to identify potential additional targets for restraining order motions would violate the recipients' First Amendment right under Dendrite v. Doe to remain anonymous. In addition to the First Amendment grounds the motion argues, based on an extensive affidavit from the requester, that the redactions were improper and, in any event, that the cat was already out of the bag.

We were glad to help the requester's lawyer, Michele Donato, with the First Amendment and technical aspects of the argument.