Judge Davis Nominated to the Sixth Circuit

President Biden has nominated Judge Stephanie Dawkins Davis, of the Eastern District of Michigan, to the Sixth Circuit.   She litigated products liability and commercial cases for five years at Dickinson Wright in Detroit, and then joined the US Attorney’s office for newly two decades.  As an AUSA, she received a 2015 “Champion of Justice” award from the Michigan Bar and worked on community initiatives such as the Advocates and Leaders for Police and Community Trust and the Detroit Youth Violence Prevention Initiative.  There’s a wonderful video of Judge Davis discussing her life and work available here, created around the time she received the Champion of Justice award.

Judge Davis was appointed to be a federal magistrate in 2016 and was elevated to the district court by President Trump in 2019.   Judge Davis seems to be a strong bipartisan pick, and we wish her well through the nomination process.

A Closer Look at the Sixth Circuit’s Decision on the Contractor Mandate

With OSHA’s decision to withdraw its ETS in the face of a hostile Supreme Court, and the Court’s 5-4 decision to uphold the CMS mandate, it’s worth taking a closer look at the Sixth Circuit’s decision to stay the contractor mandate.  Briefing in the Sixth Circuit on the contractor mandate should be finished around March 2, and the Eleventh Circuit has already scheduled oral argument in its own contractor-mandate case for April 4.  We believe that the circuits and the Supreme Court will likely reject that mandate on the merits.

The contractor mandate requires employees of federal contractors in “covered contracts” to become fully vaccinated against COVID-19, covering one-fifth of the U.S. workforce.  President Biden issued the mandate by executive order, claiming authority under the Federal Property and Administrative Services Act (FPASA).  Judge Bush’s opinion for the Sixth Circuit found that the states and contractors had standing to challenge the executive order and held that the mandate exceeded the Administration’s powers.

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OSHA Announces Intent to Withdraw ETS

The saga of the OSHA ETS litigation has (nearly) come to an end.  Yesterday, the DOJ filed a motion in the Sixth Circuit to dismiss as moot all of the consolidated petitions challenging OSHA’s vaccine-or-test mandate.  The DOJ informed the Sixth Circuit that, “[a]fter evaluating the [Supreme] Court’s decision, OSHA decided to withdraw the Vaccination and Testing ETS as an enforceable emergency temporary standard.”  OSHA noted, however, that “it has left the proposed rule in place as part of a separate, ongoing rulemaking process that imposes no obligations and is not subject to challenge.”

OSHA’s decision to withdraw the ETS is not surprising.  As we noted in a previous post, although the Supreme Court technically only considered whether to temporarily stay the ETS, the reasoning of the Court’s decision effectively decided the merits.  A majority of the Court made clear that if OSHA were to have any chance at enforcing the ETS, Congress would need to clearly delegate OSHA that authority, and Congress had not done so in the OSH Act.  That legal flaw doomed the ETS absent congressional action.

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The Sixth Circuit Holds Argument on the Tax Mandate

Today, the Sixth Circuit will consider another governmental mandate–this one, a tax mandate–as it hears argument (by video) in a case that pits Ohio once more against the federal government.  The case is Ohio v. Yellen, No. 21-3787.  The panel consists of Judges Griffin, Donald, and Bush.  Argument is expected to start around 9:30.  You can find a link to a live audio stream of the argument here.

The origins of this case go back further than any of the vaccine-related mandates that have dominated headlines (including this Blog’s) for the past several weeks.  On March 11, 2021, President Biden signed into law the American Rescue Plan Act (“ARPA”).  Through ARPA, Congress committed to spending roughly $1.9 trillion to address the harms, including economic harms, that COVID-19 has caused.

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The OSHA Mandate Decision and the Sixth Circuit

The Supreme Court’s recent per curiam opinion on OSHA’s vaccine-or-test mandate for businesses takes a practical approach to agency power, though the dissent would rather the Court have taken a more practical approach to the pandemic.  The majority opinion holds that while OSHA has power to regulate dangers in the workplace, it cannot use the workplace as a proxy for protecting the entire country.  We previously opined that Chief Judge Sutton’s dissent was “perhaps the most powerful (and the most narrow) judicial opinion against OSHA’s ETS,” and the opinion bears that out.

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We will miss Judge Merritt

Judge Gilbert S. Merritt Jr. passed away yesterday, on his 86th birthday.  Judge Merritt leaves behind three children, three grandchildren, and a life well-lived in public service.

Judge Merritt was born in Nashville, Tennessee on January 17, 1936.  Aside from receiving a B.A. in 1957 from Yale and an L.L.M. from Harvard in 1962, Judge Merritt spent most of his life serving his home state.  After receiving his L.L.B. from Vanderbilt University, Judge Merritt joined private practice in Nashville.  His dedication to Tennessee included serving as: associate metropolitan attorney to the City of Nashville; lecturer, instructor, and assistant dean at Vanderbilt University Law School; Executive Secretary of the Tennessee Code Commission; U.S. Attorney for the Middle District of Tennessee; and as a prominent Judge on the Sixth Circuit.

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The High Court stays the OSHA mandate but upholds the CMS mandate

The decision we’ve all been waiting for finally arrived today.  In two separate opinions, the Supreme Court, as appeared likely from oral argument, stayed the OSHA mandate but declined to stay the CMS mandate.

For the OSHA mandate, the Court issued a per curiam opinion chiefly holding that the mandate flunked the major questions doctrine as Congress did not clearly delegate OSHA authority to issue the mandate.  Justice Gorsuch, joined by Justice Thomas and Justice Alito, wrote a separate concurring opinion.  That separate opinion emphasized the role that the major questions doctrine plays in avoiding unconstitutional delegations of power from Congress to agencies.  Justice Breyer, Justice Sotomayor and Justice Kagan wrote a joint dissenting opinion.  According to those justices, the mandate clearly fell within the ambit of the agencies’ delegated power from Congress under the OSH Act.

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Analysis Of The Supreme Court’s Oral Argument Yesterday

After listening to the oral arguments at the Supreme Court, we think the Court will likely issue an administrative stay to delay implementation of the first ETS deadline by Monday, January 10.  U.S. Solicitor General Elizabeth Prelogar admitted that such a stay might be appropriate if the Court needed some breathing space (as it clearly needs) to decide the important issues presented here.

As we predicted in our last post, the most important issue was whether the OSH Act requires that an ETS be indispensable or essential to be “necessary.” Ohio Solicitor General Benjamin Flowers (representing the States) and Scott Keller (representing business associations) argued that the ETS was not narrowly tailored, as it was broadly targeted to indoor gatherings. They argued that Judge Larsen’s Sixth Circuit opinion was “absolutely correct” in reasoning that just because the ETS is “temporary” doesn’t mean it allows OSHA to exercise more power than Congress gave the agency.  Solicitor General Prelogar responded that OSHA had identified a baseline risk presented by all workplaces with 100 or more employees, and that the challengers had not met their burden in trying to overturn that finding.

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The OSHA Mandate — Supreme Court Oral Argument Preview

Tomorrow morning (Friday, January 7), the Supreme Court hears oral argument in the OSHA (10 a.m. EST) and CMS (11 a.m. EST) mandate cases.  (You can listen to the arguments live here.)  For the OSHA mandate, one group of petitioners consists of a coalition of twenty-seven States, led by Ohio, and the other consists of a coalition of business associations.  We’ve read the briefs, and here are our issues to look out for tomorrow:

Whether OSHA may only regulate occupational dangers.  The petitioners argue that because the OSH Act and OSHA regulations are all concerned with occupational hazards, OSHA cannot regulate against a virus presenting a risk to all Americans.  Meanwhile, OSHA argues that the OSH Act is not limited to dangers that are workplace-specific, especially given Congress’ previous endorsement of OSHA’s measures to encourage vaccination against bloodborne pathogens.

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The Sixth Circuit Deals Another Blow to the Contractor Mandate

As readers of this Blog know, the OSHA vaccine-or-test mandate has occupied much of the Sixth Circuit’s time the past few weeks.  That mandate is now before the Supreme Court, which hears oral argument on the OSHA and CMS mandates tomorrow.  In the meantime, a third pandemic-era mandate—the federal contractor mandate—made its own splash in the Sixth Circuit yesterday.

That mandate, issued by the Safer Federal Workforce Task Force, requires employees of federal contractors in “covered contracts” to become fully vaccinated against COVID-19.  This “contractor mandate” potentially covers roughly one-fifth of the entire U.S. workforce.

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