The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Judge Stranch's majority opinion is here. It begins:
The COVID-19 pandemic has wreaked havoc across America, leading to the loss of over 800,000 lives, shutting down workplaces and jobs across the country, and threatening our economy. Throughout, American employees have been trying to survive financially and hoping to find a way to return to their jobs. Despite access to vaccines and better testing, however, the virus rages on, mutating into different variants, and posing new risks. Recognizing that the "old normal" is not going to return, employers and employees have sought new models for a workplace that will protect the safety and health of employees who earn their living there. In need of guidance on how to protect their employees from COVID-19 transmission while reopening business, employers turned to the Occupational Safety and Health Administration (OSHA or the Agency), the federal agency tasked with assuring a safe and healthful workplace. On November 5, 2021, OSHA issued an EmergencyTemporary Standard (ETS or the standard) to protect the health of employees by mitigating spread of this historically unprecedented virus in the workplace. The ETS requires that employees be vaccinated or wear a protective face covering and take weekly tests but allows employers to choose the policy implementing those requirements that is best suited to their workplace. The next day, the U.S. Court of Appeals for the Fifth Circuit stayed the ETS pending judicial review, and it renewed that decision in an opinion issued on November 12. Under 28 U.S.C. § 2112(a)(3), petitions challenging the ETS—filed in Circuits across the nation—were consolidated into this court. Pursuant to our authority under 28 U.S.C. § 2112(a)(4), we DISSOLVE the stay issued by the Fifth Circuit for the following reasons.
Judge Gibbons wrote a short concurring opinion, with an ode to Chevron:
Reasonable minds may disagree on OSHA's approach to the pandemic, but we do not substitute our judgment for that of OSHA, which has been tasked by Congress with policy-making responsibilities. See Charles D. Bonnano Linen Serv., Inc. v. NLRB, 454 U.S. 404, 418 (1982). This limitation is constitutionally mandated, separating our branch from our political co-branches. "[F]ederal judges—who have no constituency—have a duty to respect legitimate policy choices made by those who do." Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 866 (1984). Beyond constitutional limitations, the work of an agency, often scientific and technical in nature, is outside our expertise. See Kisor v. Wilkie, 139 S. Ct. 2400, 2413 (2019).
Our only responsibility is to determine whether OSHA has likely acted within the bounds of its statutory authority and the Constitution. As it likely has done so, I concur.
Judge Larsen wrote a 20-page dissent. It begins:
As the Supreme Court has very recently reminded us, "our system does not permit agencies to act unlawfully even in pursuit of desirable ends." Ala. Ass'n of Realtors v. Dep't of Health & Hum. Servs., 141 S. Ct. 2485, 2490 (2021). The majority's theme is that questions of health science and policy lie beyond the judicial ken. I agree. But this case asks a legal question: whether Congress authorized the action the agency took. That question is the bread and butter of federal courts. And this case can be resolved using ordinary tools of statutory interpretation and bedrock principles of administrative law. These tell us that petitioners are likely to succeed on the merits, so I would stay OSHA's emergency rule pending final review.
Judge Larsen had voted to take the case en banc initially. This split tells us that Judge Griffin, who was not on the panel, agreed not to go en banc.