The Volokh Conspiracy
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(Note: This post has been updated with excerpts from the opinions.)
Today the U.S. Court of Appeals for the Sixth Circuit denied several petitions for initial hearing en banc of the consolidated challenges to the Occupational Safety and Health Administration's Emergency Temporary Standard requiring large employers to either mandate their employees get vaccinated or impose regular testing for COVID-19. (I noted the first of these petitions here.) This means that the consolidated challenges will be heard by a three-judge panel of the court. The judges on that panel have not yet been disclosed.
According to the court's order, "less than a majority of the active judges . . . voted in favor of initial hearing en banc." Given the current composition of the Sixth Circuit, this suggests that the judges split 8-8 on whether to grant initial hearing en banc.
Judge Moore delivered an opinion concurring in the denial of the petitions for initial hearing, joined by Judges Cole, Clay, White and Donald.
Chief Judge Sutton dissented from the denial of the petitions for initial hearing en banc, joined by Judges Kethledge, Thapar, Bush, Larsen, Nalbandian, Readler, and Bush. Judge Bush also delivered a separate dissenting opinion.
Judges Stranch, Gibbons and Griffin did not join any of the above opinions. Given the number of judges on the court, it appears they did not vote in favor of initial hearing en banc. (Speculation alert: Perhaps this means they are the three judges assigned to hear the case.)
Today's order did not address the federal government's pending motion to dissolve the stay against the OSHA ETS entered by the U.S. Court of Appeals for the Fifth Circuit. Chief Judge Sutton's opinion, however, argues that the ETS should be stayed pending resolution of the challenge, which may suggest the three-judge panel considering the government's motion is prepared to lift the stay. Time will tell. It is also possible that Chief Judge Sutton's dissent is a de facto amicus brief, clearly indicating to the panel (and, perhaps, to folks at One First Street) the views of half of the court.
On the merits, as I have noted in my prior posts on the OSHA ETS, the biggest problem for OSHA is that it is difficult to argue that the graveness of the danger posed by COVID-19, or "necessary" measures to control that danger, have any relation to the number of employees on a firm's payroll, yet that is the basis upon which OSHA applies the rule. Even assuming that COVID-19 poses a "grave danger" in the workplace (which is a contestable proposition), it cannot be that this danger is more dependent upon the number of a firm's employees than, say, the number of people in a given workplace or who are in prolonged close contact. This would seem to be a fatal flaw in the OSHA rule that would justify setting it aside even before getting to some of the broader questions about the scope and nature of the agency's authority, such as those reached by the Fifth Circuit in its stay order.
Below the jump are some excerpts from the respective opinions.
Judge Moore's concurrence is relatively brief, and makes repeated reference to Chief Judge Sutton, who has often counseled against en banc rehearings, even when he has disagreed with the initial panel's decision.
This is an important case on an accelerated timeframe. And yet, many challengers proposed initial hearing en banc, an "often unproductive, always inefficient process." See Mitts v. Bagley, 626 F.3d 366, 370 (6th Cir. 2010) (Sutton, J., concurring in denial of en banc review). Because a three-judge panel of our court has already devoted significant time to this case, and because initial hearing en banc would subvert our normal process and require the full court to grapple with a sprawling record, I concur in the denial of initial hearing en banc.
Courts have repeatedly recognized that en banc hearing is an inefficient process. See Mitts, supra; Hart v. Massanari, 266 F.3d 1155, 1172 & n.29 (9th Cir. 2001) (calling en banc proceedings "unwieldy and time-consuming") (internal quotation omitted); Bartlett ex rel. Neumann v. Bowen, 824 F.2d 1240, 1243 (D.C. Cir. 1987) (Edwards, J., concurring in the denial of rehearing en banc) (noting that en banc rehearing "substantially delays the case being reheard"). This potential for delay "is magnified when there has been no prior panel consideration of a case." Belk v. Charlotte-Mecklenburg Bd. of Educ., 211 F.3d 853, 854 (4th Cir. 2000) (Wilkinson, C.J., concurring in denial of initial hearing en banc).
This case shows the folly of initial hearing en banc. The massive docket and profusion of briefs, as in an especially complex matter before a district court, require focused consideration by a devoted panel. En banc hearing does indeed put "all hands on deck." C.J. Sutton Dissent at 11. In a case as important, accelerated, and briefing-filled as this one, however, gathering all hands on deck would have strained the resources of the sixteen active judges, requiring each of us to review the voluminous record and the relevant underlying legal doctrines. What's more, it would have done so for no discernable purpose: the case already sits before three thoughtful, independent judges on the panel who have spent the past weeks steeped in this matter. We properly leave the matter in their hands.
Our decisions "warrant the utmost respect when they are perceived by the public to have been reached in the most regular and careful manner." Belk, 211 F.3d at 856 (Wilkinson, C.J., concurring in denial of initial hearing en banc). I am relieved that this court adheres to those standards of regularity and care today.
Chief Judge Sutton's (substantially longer) dissent begins:
When much is sought from a statute, much must be shown. The Secretary of Labor asks a lot of the Occupational Safety and Health Act. He claims authority to issue an emergency rule, scheduled to go into effect on January 4, 2022, that will require roughly 80 million workers to become vaccinated or face a weekly self-financed testing requirement and a daily masking requirement. At the same time, he assumes authority to regulate an area—public health and safety— traditionally regulated by the States. If valid, the rule would nullify all contrary state and local regulations, as the power to regulate nationally is the power to preempt locally. Such broad assertions of administrative power demand unmistakable legislative support. The federal courts "expect Congress to speak clearly when authorizing an agency to exercise powers of 'vast economic and political significance'" and to use "exceedingly clear language if it wishes to significantly alter the balance between federal and state power." Ala. Ass'n of Realtors v. Dep't of Health & Hum. Servs., 141 S. Ct. 2485, 2489 (2021) (quotation omitted).
Congress did not "clearly" grant the Secretary of Labor authority to impose this vaccinate-or-test mandate. First, as a threshold matter, the Occupational Safety and Health Act gives the Secretary power to address only occupational health and safety risks. But it is by no means clear that this authority extends to all hazards that might affect employees at some point during the 16 hours of each weekday and the 48 hours of each weekend when they are not at work, whether the hazard arises from a coronavirus of one sort or another, a virulent flu, traffic safety, air pollution, vandalism, or some other risk to which people are equally exposed at work and outside of work. It is one thing to tell a worker to don a mask at the start of a hazard-filled shift and doff it at the end. It is quite another to tell a worker to vaccinate on the basis of a risk that exists whether he is on the clock or off and that amounts to a medical procedure that cannot be removed at the end of the shift. Confirming the point, the Secretary of Labor has never imposed a vaccine mandate or for that matter a vaccinate-or-test mandate on American workers. The Act does not clearly give the Secretary power to regulate all health risks and all new health hazards, largely through off-site medical procedures, so long as the individual goes to work and may face the hazard in the course of the workday.
Second, even apart from the workplace-anchored scope of the Act, the Secretary of Labor's power to issue "emergency temporary standards" does not justify the first vaccinate-or-test mandate in federal labor law history. This emergency power extends only to "necessary" measures, namely measures indispensable or essential to address a "grave" danger in the workplace. But this set of preconditions does not apply (1) when the key population group at risk from COVID-19—the elderly—in the main no longer works, (2) when members of the working-age population at risk—the unvaccinated—have chosen for themselves to accept the risk and any risk is not grave for most individuals in the group, and (3) when the remaining group—the vaccinated—does not face a grave risk by the Secretary's own admission, even if they work with unvaccinated individuals. Countless lesser and more focused measures were available to the Secretary: targeting certain industries susceptible to high risk, focusing on protections for workers most vulnerable to the virus, and varying any requirements to account for the wide range of settings in which people work. A blunt national vaccine mandate for 80 million workers with little regard to the relevant employment circumstances—well-spaced or not, together or apart, high risk individuals or not, indoors or mainly outdoors—was not necessary under the Act, and Congress did not clearly say otherwise.
Third, the setting of these requirements—authority to set "emergency temporary standards" without complying with the notice-and-comment process—confirms the narrowness of this authority and its inapplicability here. Start with "emergency." The Secretary does not invoke this power based on a sudden revelation that the virus presents a serious health risk. How could he? He relies on something else—the increased availability of vaccines. That development, however, does not heighten health risks; it alleviates them—and it's hardly a new development anyway. What, moreover, is "temporary" about a vaccination? A reluctant or coerced vaccination cannot be undone if the Secretary changes course during the notice-and-comment process or if the proposed rule exceeds the Secretary's authority. All of the Secretary's emergency decrees to date, even the ones invalidated by the courts, have involved truly temporary measures to protect workers from certain hazards at work until the notice-and-comment process ends. Ready access to free vaccinations may not have quelled the pandemic as quickly as the Secretary, or any of us, would like. But that reality does not justify, much less justify clearly, a sudden invocation of an emergency medical power at roughly the two-year anniversary of the pandemic merely because the Secretary determines that not enough Americans are vaccinated.
For my part, the resolution of this conflict between existing law and the Secretary's proposed policy is not particularly hard. What makes the case difficult are the ongoing challenges of the pandemic and the health-and-safety benefits of obtaining vaccinations. The challenges presented by the pandemic are serious, no one can deny. The record confirms what common experience shows—"that the public has a strong interest in combating the spread" of a virus that has prematurely ended over three-quarters of a million American lives. Ala. Ass'n of Realtors, 141 S. Ct. at 2490. The record also shows the utility of vaccinations. The medical studies to date show that vaccinated individuals face fewer risks of getting the virus and, for those who still suffer breakthrough infections, fewer risks of serious symptoms or death. It is the rare federal judge, indeed the rare employee in the third branch, I suspect, who has not gotten the message.
But the issue here is not that simple. No matter the policy benefits of a well-intended regulation, a court may not enforce it if the agency's reach exceeds a statute's grasp. Once before, in the throes of another threat to the country, the executive branch claimed it needed to seize control of the country's steel mills as a "necessary" measure "to avert a national catastrophe." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 582 (1952). But that threat, like this one, did not permit the second branch to act without authorization from the first branch. Id. at 588–89. As the Supreme Court recently explained in invalidating an eviction moratorium promulgated by the Center for Disease Control, "our system does not permit agencies to act unlawfully even in pursuit of desirable ends." Ala. Ass'n of Realtors, 141 S. Ct. at 2490. Shortcuts in furthering preferred policies, even urgent policies, rarely end well, and they always undermine, sometimes permanently, American vertical and horizontal separation of powers, the true mettle of the U.S. Constitution, the true long-term guardian of liberty.
For these reasons and those elaborated below, the challengers are likely to prevail on the merits when it comes to their petitions targeting the emergency rule. That reality together with the other stay factors show that the emergency rule should remain stayed. Nken v. Holder, 556 U.S. 418, 434 (2009); Ala. Ass'n of Realtors, 141 S. Ct. at 2490.
Judge Bush's solo dissent begins:
This is a case about the Occupational Safety and Health Administration, but it is really a case about power. Specifically, it concerns the attempted exercise of a purported power—to impose a de facto national vaccine mandate upon some eighty-million Americans—that OSHA was never given and that Congress likely could never have given to it. Chief Judge Sutton's dissent ably explains the former defect, and so I join it in full. I write separately to address the latter.
Whether it uses a clear statement or not, Congress likely has no authority under the Commerce Clause to impose, much less to delegate the imposition of, a de facto national vaccine mandate upon the American public. Such claimed authority runs contrary to the text and structure of the Constitution and historical practice. The regulation of health and safety through compulsory vaccination is a traditional prerogative of the states—not the domain of Congress and certainly not fodder for the diktat of a federal administrative agency. Because we should have granted initial hearing en banc to vindicate the correct understanding of the Constitution and to cabin OSHA to its legitimate role, I respectfully dissent.