Bloomberg Law
Nov. 8, 2021, 9:25 PM

White House Biding Its Time in Fight Over Shot-or-Test Mandate

Robert Iafolla
Robert Iafolla

The Biden administration signaled Monday that it won’t seek immediate U.S. Supreme Court intervention after a federal appeals court halted its emergency rule requiring large employers to mandate Covid-19 vaccination or regular testing for workers.

While the White House could seize upon the interim stay issued by the U.S. Circuit Court of Appeals for the Fifth Circuit on Nov. 6—or a permanent injunction the circuit court panel could hand down later this week—to quickly take the case up to the justices, it also has the luxury of waiting as the federal Occupational Safety and Health Administration enforcement provision doesn’t kick in until Jan. 4.

With similar legal challenges filed at federal appeals courts in Atlanta, Chicago, St. Louis, and elsewhere, the Justice Department told the New Orleans-based Fifth Circuit in a letter Monday that it expects a multi-circuit process to proceed with the selection of a single circuit court to hear the consolidated case against the rule. That court can reconsider any stay orders, the DOJ said.

The Justice Department didn’t immediately respond to a request for comment.

“Given the fact of the January implementation date, there might be a desire to see how it plays out before asking for the Supreme Court’s intervention,” said Robert Peck, an appellate lawyer who heads the Center for Constitutional Litigation P.C.

OSHA officially published the rule on Nov. 5. It requires companies with at least 100 workers under its authority to create emergency temporary standards that are necessary to address a “grave danger.” Legal challenges to it started rolling in Nov. 4, when the agency first made public its details.

Circuits Flooded

Republican attorneys general, companies, business groups, and others have filed at least 12 lawsuits in six different circuits: the Fifth, Sixth, Seventh, Eighth, Eleventh, and District of Columbia circuits. More petitions are expected, including from supporters of the rule in an effort for a more favorable circuit court to hear the consolidated case.

The regional appellate court that handles the case will initially be chosen via a lottery, which is currently scheduled for Nov. 16, though that selection too can be contested.

As the Fifth Circuit showed, the circuit courts can rule on requests to halt the rule before the lottery takes place. But the court that wins the lottery has the authority to lift or keep previously issued stays.

The Fifth Circuit handed down its order temporarily halting the emergency rule Nov. 6, citing “grave statutory and constitutional issues” with the measure. The court called on the Biden administration to file briefing on a possible injunction by the close of business on Monday.

Challengers have filed requests to stay the OSHA regulation in at least two other circuits, and more such requests may be on the way.

VIDEO: President Biden’s vaccine mandate rule for companies, the likely legal challenges and what to expect next.

Petition to High Court?

Still, the Biden administration could invite Supreme Court intervention by asking for the Fifth Circuit’s stay to be lifted. That request would be handled by Justice Samuel Alito, who’s the justice overseeing that circuit. He could also refer the issue to the full court for a vote.

The possibility of swift Supreme Court deliberation of lawsuits against the emergency regulation stems from its expansion of the “shadow docket” to consider cases outside of its normal procedures, legal observers said. The high court heard oral argument in the challenge to Texas’ near-total abortion ban 10 days after it agreed to consider the Justice Department’s request to consider a Fifth Circuit order in the case.

In addition to the major public- and occupational-health issues in the OSHA rule, it also raises questions about the scope of agency power that has concerned the Supreme Court in recent years, said Tessa Dysart, a law professor at the University of Arizona who focuses on appellate advocacy.

But the court hasn’t rushed into other cases involving vaccine rules, turning down emergency petitions involving mandates for University of Indiana students, public school teachers in New York City, and health care workers Maine.

Even if the Justice Department asked the Supreme Court to lift the Fifth Circuit stay, the OSHA regulation probably wouldn’t get immediate high court review, noted James Hodge, an Arizona State University law professor who directs the school’s Center for Public Health and Policy.

The agency included in its rule exceptions for religious objections and the option for testing rather than vaccination, which represent the types of employee options that should quell any urgency to review the rule that the justices may have otherwise had, Hodge said.

The case is BST Holdings v. OSHA, 5th Cir., No. 21-60845.

—with assistance from Laurel Calkins

To contact the reporter on this story: Robert Iafolla in Washington at

To contact the editors responsible for this story: Andrew Harris at; Jay-Anne B. Casuga at