As anticipated, the actions by the 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 a 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 of the ETS pending full judicial review issued by that Court on November 12th.
While not “full judicial review”, the three-judge panel continuing the stay did not mince words about who it felt about the ETS. The mainstream media (ever conscious of clicks and maximizing audience) used the most dramatic parts – here is the legally most important part:
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 statutes 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. That 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.
As of this writing, there are no petitions filed in the United States Court of Appeals for the Ninth Circuit covering California and western states.
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.
The United States Department of Justice, in the Missouri v. Biden case, noted:
“With respect to the ETS at issue, the United States expects the multi-circuit lottery to take place on or about November 16, after which all petitions for review will be consolidated in one court of appeals responsible for deciding these petitions and considering or reconsidering any stay orders.”
It would be somewhat ironic if the designation and consolidation occurred on November 18, the same day the California Occupational Safety and Health Standards Board is meeting to discuss its own ETS and, potentially, how it would be conformed to the federal ETS now the subject of litigation across the central, southern, and eastern parts of the United States.
Biden’s Executive Order is Different
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 taken by Fed-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.
Note: The opinions expressed herein may or may not be those of Workers’ Comp Executive. Mark Webb is a former Arizona insurance regulator, insurance company chief compliance officer, and is an expert in corporate governance, risk and compliance. He is the owner of Prop 23 Advisors.