Biden Administration Asks Court to Combine Lawsuits Against OSHA Vaccine Mandate

By Zachary Stieber
Zachary Stieber
Zachary Stieber
Zachary Stieber covers U.S. news and stories relating to the COVID-19 pandemic. He is based in Maryland.
November 8, 2021 Updated: November 8, 2021

The Biden administration is seeking a consolidation of the flurry of legal challenges that have been filed against its private employer COVID-19 vaccine mandate, which would affect 84 million workers if allowed to take effect.

A federal appeals court over the weekend put the mandate on hold as judges decide whether or not to overturn it.

Legal challenges against the mandate have raised “grave statutory and constitutional issues,” the court panel said.

Because at least a dozen lawsuits have been filed against the emergency rule, promulgated by the Department of Labor’s Occupational Safety and Health Administration (OSHA), the panel should abide by a federal law that says multiple challenges should be combined, government lawyers told the judges in a Nov. 8 filing.

The law says that in such cases courts “shall, by means of random selection, designate one court of appeals, from among the courts of appeals in which petitions for review have been filed.”

That means that a single appeals court will handle the combined filings, instead of the five circuits that have received challenges so far.

But until they’re combined, the separate cases are still proceeding, Buck Dougherty, senior attorney at the Liberty Justice Center, which is representing plaintiffs in the Fifth Circuit U.S. Court of Appeals case, told The Epoch Times.

The appeals court on Saturday ruled to stay the mandate until further order from the court and told the government to reply to a motion for a permanent injunction by 5 p.m. local time on Monday.

The government had not filed any other papers by the deadline, according to a review of the docket.

The Department of Justice did not respond to a request for comment.

The Republican National Committee, Answers in Genesis, and Kentucky have brought other challenges, as have Bentkey Services, Phillips Manufacturing & Tower, Southern Baptist Theological, Tankcraft Corp., Indiana, the Job Creators Network, and Florida. Together, the filings have been lodged across at least five circuits.

Biden administration lawyers said in their filing that they expect a lottery selection for the court to take place on or about Nov. 16. They also informed other appeals courts of the upcoming lottery.

Each circuit has a different makeup of judges, which could affect how the challenges are decided.

“We have a strong case regardless of what circuit we’re in,” Dougherty said.

The Fifth Circuit appeals court panel later Monday ordered the government to, in addition to other filings it planned to lodge, to respond to a motion for a longer stay filed by petitioner LeadingEdge by noon on Nov. 10.

The stay brought temporary relief for many businesses that would be forced to obtain proof of COVID-19 vaccination from workers or make them get tested on a weekly basis for COVID-19.

Every business with 100 or more workers falls under the mandate, which has a Jan. 4, 2022, deadline. Smaller businesses may face the vaccination rules, the Department of Labor has indicated.

Saturday’s ruling was widely interpreted as applying nationwide, though some doubt was indicated in another case.

Missouri and 10 other states that filed a challenge to the OSHA rule to the Eighth Circuit said in a filing Monday that the order “may be construed to have nationwide effect” but “it does not make an explicit statement on this point,” asking the court to “enter a similar order here” to “avoid any confusion.”

Louisiana Attorney General Jeff Landry, who is part of the Fifth Circuit case, disagreed, saying the order was clear.

“I believe that basic simple reading of the Fifth Circuit [order] brings you to the conclusion that OSHA is enjoined from implementing the rule, not just in the Fifth Circuit states, but in the country as as a whole,” he told The Epoch Times.

Challengers to the rule say it’s clearly outside OSHA’s powers. For instance, petitioners in the Fifth Circuit said OSHA cannot show COVID-19 presents a “grave danger” to all businesses with 100 or more employees because only a few months prior, the agency ordered just healthcare employers to mandate vaccination.

Biden administration officials argue that the mandate is legal under the Occupational and Safety Health Act of 1970.

In a briefing Monday, White House deputy press secretary Karine Jean-Pierre noted that over 750,000 people are believed to have died of COVID-19 in the United States since the start of the pandemic, with another 1,300-plus dying every day.

“If that’s not a grave danger, I don’t know what else is,” she said.

Zachary Stieber
Zachary Stieber covers U.S. news and stories relating to the COVID-19 pandemic. He is based in Maryland.