DOJ: Too soon to rule on permanent injunction sought for COVID-19 vaccines
U.S. attorneys responded a legal challenge on Monday saying the petitioners have jumped the gun on their request.
Department of Justice attorneys asked the U.S. Court of Appeals for the Fifth Circuit to deny a permanent injunction jointly sought by states and businesses seeking to challenge the Biden administration’s vaccine mandate, according to its filing late on Monday.
Various states, including a group of 11 in the Central and Western portions of the U.S., filed a lawsuit on Friday in the U.S. Court of Appeals for the Eighth Circuit calling the coronavirus vaccine mandate for private businesses with 100 employees or more unconstitutional. Other lawsuits were filed in the Sixth, Seventh, Eleventh and D.C. circuits.
Related: Federal vaccine mandate hits first roadblock in appeals court
The sticking point came in the Fifth Circuit over the weekend in BST Holdings v. OSHA on behalf of private employers and attorneys general in Texas, Louisiana, Mississippi, Utah and South Carolina.
On Saturday, Fifth Circuit Judges Edith Jones, Stuart Kyle Duncan and Kurt Engelhardt unanimously granted an emergency stay of OSHA’s requirement that workers be vaccinated by Jan. 4 or face mask requirements and weekly testing, claiming that the petitions gave “cause to believe there are grave statutory and constitutional issues with the mandate,” they wrote.
“Yesterday, I sued the Biden Admin over its unlawful OSHA vax mandate. WE WON,” Texas Attorney General Ken Paxton tweeted on Saturday after the appellate court agreed to grant the stay of the mandate pending expedited judicial review. “Just this morning, citing ‘grave statutory and constitutional issues,’ the 5th Circuit stayed the mandate. The fight is not over and I will never stop resisting this Admin’s unconstitutional overreach!”
U.S. attorneys responded on Monday by saying the petitioners’ requests are about a month off.
“Petitioners seek emergency relief, but most of their asserted harms are at least a month off, and many of their claimed harms relate to a testing requirement that does not become effective until January 2022,” according to the DOJ’s filing. “No reason exists to rule on petitioners’ stay motions immediately, before the Judicial Panel on Multidistrict Litigation even assigns a court to hear the many pending challenges … and certainly no reason to consider a permanent injunction, which could be particularly improper.”
When multiple petitions for review of a single agency are filed in at least two courts of appeals within 10 days, the agency must notify the judicial panel on multidistrict litigation. In a letter to the various clerk of courts, DOJ attorneys asked for a multicircuit lottery to happen on Nov. 16 and assign the collective cases to one court.
“[T]he 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,” U.S. Attorney Brian Springer wrote.
The petitioners have until 5 p.m. Tuesday to file any reply.
While circuit decisions normally apply to states within that particular district, Louisiana Attorney General Jeff Landry told the Associated Press that the “language employed by the judges gave the decision a national scope.”
“This is a great victory for the American people out there,” he said. “Never before has the federal government tried in such a forceful way to get between the choices of American citizens and their doctor. To me that’s the heart of the entire issue.”
But Katten Muchin Rosenman recommended that employers still start preparing.
“Given the myriad legal challenges, the ultimate fate of the OSHA Rule is unclear,” the firm said in a question-and-answer bulletin on Monday. “Nevertheless, because the Rule may be upheld and the due dates for action are fast-approaching, covered employers should begin preparing now to comply.”
On July 23, the White House said that mandating vaccination is “not the role of the federal government,” but shifted its take Sept. 9 when President Joe Biden announced several sweeping COVID-19-related mandates.
OSHA published the emergency mandate two months later. In a press release on Friday, OSHA said the Emergency Temporary Standard will save lives and prevent more than 250,000 hospitalizations due to workplace exposure to COVID-19.
“COVID-19 has had a devastating impact on workers, and we continue to see dangerous levels of cases,” said U.S. Labor Secretary Marty Walsh. “We must take action to implement this emergency temporary standard to contain the virus and protect people in the workplace against the grave danger of COVID-19. Many businesses understand the benefits of having their workers vaccinated against COVID-19, and we expect many will be pleased to see this OSHA rule go into effect.”
The mandate required private employers with 100 or more employees to require their employees get vaccinated by Jan. 4 or implement weekly testing and mask requirements. Noncompliant businesses could face hefty fines of nearly $14,000 per violation.
“The OSHA emergency temporary standard is a critical tool to keep America’s workplaces safe as we fight our way out of this pandemic,” Department of Justice spokesman Anthony Coley said on Saturday. “The Justice Department will vigorously defend this rule in court.”
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