In re Nat'l Nurses United

47 F.4th 746

IN RE: NATIONAL NURSES UNITED, et al., Petitioners

No. 22-1002

United States Court of Appeals, District of Columbia Circuit.

Argued April 4, 2022

Decided August 26, 2022

Nicole J. Daro argued the cause for petitioners. With her on the petition for a writ of mandamus and the reply were Micah L. Berul, Carol A. Igoe, Jonathan Walters, David J. Strom, Judy Rivlin, Harold Craig Becker, and Randy S. Rabinowitz.

Joseph Gilliland, Attorney, U.S. Department of Labor, argued the cause for respondents. On the opposition to the petition for writ of mandamus were Edmund C. Baird, Associate Solicitor for Occupational Safety and Health, Heather R. Phillips, Counsel for Appellate Litigation, and Anne E. Bonfiglio, Attorney. Johnda D. Bentley, Attorney, entered an appearance.

Before: Srinivasan, Chief Judge, Rao, Circuit Judge, and Sentelle, Senior Circuit Judge.

Rao, Circuit Judge:

In June 2021, the Occupational Safety and Health Administration ("OSHA") promulgated an emergency temporary standard to mitigate the risk of COVID-19 transmission in healthcare settings ("Healthcare ETS"). In December 2021, OSHA announced its intent to withdraw the Healthcare ETS while continuing to work on the permanent standard. National Nurses United and its co-petitioners ("the Unions") seek a writ of mandamus compelling OSHA (1) to issue a permanent standard superseding the Healthcare ETS within 30 days of the writ's issuance; (2) to retain the Healthcare ETS until a permanent standard supersedes it; and (3) to enforce the Healthcare ETS.

We lack jurisdiction to compel OSHA to retain the Healthcare ETS because doing so would not aid our current or prospective jurisdiction as required for relief under the All Writs Act. Moreover, mandamus is reserved only for transparent violations of a clear duty to act. We cannot order OSHA to promulgate a permanent standard because at the conclusion of the rulemaking process, OSHA is permitted to determine that no standard should issue. And enforcement of the Healthcare ETS is squarely within OSHA's prosecutorial discretion and therefore inappropriate for judicial control through mandamus. Therefore, we deny the petition in part and dismiss it in part for lack of jurisdiction.

I.

A.

The Occupational Safety and Health Act ("Act") was enacted "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources." Pub. L. No. 91-596, § 2(b), 84 Stat. 1590, 1590 (1970) (codified at 29 U.S.C. § 651(b) ). To that end, the Secretary of Labor may promulgate occupational safety and health standards that employers and employees must comply with. 29 U.S.C. §§ 654(a)(2), (b), 655. The Secretary exercises this authority through OSHA.

Section 6(b) of the Act establishes a set of notice and comment procedures OSHA must follow to issue or amend standards. See id. § 655(b). The Act allows the public to comment on or object to a proposed standard and provides for a public hearing on any objections. Id. § 655(b)(2)–(3). At the end of the rulemaking proceeding, OSHA "shall issue a rule promulgating, modifying, or revoking an occupational safety or health standard or make a determination that a rule should not be issued." Id. § 655(b)(4).

Section 6(c) allows OSHA to bypass the Act's procedural requirements and promulgate a temporary standard in emergency situations.¹ 29 U.S.C. § 655(c). If OSHA "determines (A) that employees are exposed to grave danger from exposure to substances ... and (B) that [an] emergency standard is necessary to protect employees from such danger," then OSHA "shall provide ... for an emergency temporary standard ["ETS"] to take immediate effect upon publication in the Federal Register." Id. § 655(c)(1). The ETS "shall be effective until superseded by a standard promulgated in accordance with the procedures prescribed" in section 6(c)(3). Id. § 655(c)(2). Section 6(c)(3), in turn, says OSHA shall commence the Act's notice and comment procedures "[u]pon publication of" the ETS, shall use the ETS as the proposed rule for that proceeding, and "shall promulgate a standard ... no later than six months after publication of the emergency standard." Id. § 655(c)(3).

Standards may be challenged by a person who is "adversely affected" by petitioning a federal circuit court within sixty days of when the standard is promulgated. Id. § 655(f). Once sixty days have elapsed, no court has jurisdiction to review a pre-enforcement challenge to a standard. Instead, the validity of a standard may be challenged as a defense in an enforcement action. See id. § 660(a).

B.

Soon after taking office, President Biden directed OSHA to "consider whether any emergency temporary standards on COVID-19 ... are necessary," and if so, to issue them. Exec. Order No. 13,999, § 2(b), 86 Fed. Reg. 7,211, 7,211 (Jan. 21, 2021). In response, OSHA determined that exposure to COVID-19 "presents a grave danger" to healthcare workers, and that an ETS is "necessary" to protect them. Based on these findings, the Secretary promulgated the Healthcare ETS, which set forth required precautionary measures in healthcare occupational settings.² Occupational Exposure to COVID-19; Emergency Temporary Standard, 86 Fed. Reg. 32,376, 32,377 (June 21, 2021) (codified at 29 C.F.R. § 1910.502 et seq. ) ("Healthcare ETS").

Shortly after issuing the Healthcare ETS, OSHA's strategy for combatting COVID-19 shifted. Rather than focusing specifically on healthcare settings, OSHA developed and promulgated an ETS requiring employees of all large employers to either get vaccinated against COVID-19 or test weekly. COVID-19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61,402 (Nov. 5, 2021) ("Vaccine ETS"). The Supreme Court held the Vaccine ETS likely exceeded OSHA's statutory authority. See Nat'l Fed'n of Indep. Bus. v. Dep't of Lab. , ––– U.S. ––––, 142 S. Ct. 661, 664–66, 211 L.Ed.2d 448 (2022) (per curiam).

Because OSHA had allocated significant resources to developing the Vaccine ETS, it had fallen behind on promulgating a permanent COVID-19 standard for healthcare settings. In December 2021, OSHA announced its intention to withdraw the Healthcare ETS because it was unable to complete the necessary notice and comment procedures within the six-month timeframe.³ Statement on the Status of the OSHA COVID-19 Healthcare ETS , OCCUPATIONAL SAFETY AND HEALTH ADMIN. (Dec. 27, 2021), https://www.osha.gov/coronavirus/ets. OSHA emphasized that COVID-19 still posed a danger to healthcare workers and that the ETS was still necessary to protect them. OSHA also explained it would "continue to work expeditiously to issue a final standard" and, until that time, "vigorously enforce ... its general standards ... to help protect healthcare employees from the hazard of COVID-19." Id . Because it recognized it was unable to issue a permanent standard "in a timeframe approaching the one contemplated by the ... Act," OSHA announced that it would withdraw the Healthcare ETS in a notice published in the Federal Register. Id.

Before OSHA withdrew the ETS, the Unions filed this petition for mandamus. OSHA decided not to publish the withdrawal while the petition was pending, so the Healthcare ETS remains on the books. But OSHA conceded at oral argument that it was no longer enforcing the ETS.

II.

The Unions petition for a writ of mandamus compelling OSHA (1) to issue a permanent standard superseding the Healthcare ETS within 30 days; (2) to refrain from withdrawing the Healthcare ETS until it promulgates a permanent standard; and (3) to continue enforcing the Healthcare ETS. They seek relief pursuant to the All Writs Act, which empowers this court to "issue all writs necessary or appropriate in aid of [its] ... jurisdiction[ ] and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a). When a party requests a writ of mandamus against an agency under the All Writs Act, we undertake a three-step inquiry.

First, we must ensure that we have jurisdiction by considering whether issuing the writ would protect our current or prospective jurisdiction.⁴ The All Writs Act does not grant jurisdiction to issue a writ of mandamus. In re Tennant , 359 F.3d 523, 527 (D.C. Cir. 2004). Instead, it authorizes the issuance of a writ of mandamus in aid of jurisdiction this court already has or will have as a result of issuing the writ. See id. at 527–28. When an agency unlawfully withholds or unreasonably delays an action this court would have jurisdiction to review, the All Writs Act empowers us to issue a writ compelling the agency to complete the action so we can exercise our jurisdiction to review it. Telecomms. Rsch. & Action Ctr. v. FCC ("TRAC "), 750 F.2d 70, 75–76 (D.C. Cir. 1984). If, on the other hand, the court does not and would not have jurisdiction to review the agency action sought by petitioners, it cannot bootstrap jurisdiction via the All Writs Act. See id. at 77 (explaining that when a court "has no present or future jurisdiction over agency actions ... it can contemplate no exercise of jurisdiction that mandamus might aid"); In re Stone , 569 F.2d 156, 157 (D.C. Cir. 1978) (per curiam) ("We have no appellate jurisdiction over the instant case, past, present, or future, which mandamus could ‘aid.’ Therefore we lack jurisdiction to issue the writ.").

Second, if the court has jurisdiction, it must consider whether the agency has a crystal-clear legal duty to act. The writ remains "reserved only for the most transparent violations of a clear duty to act." In re Core Commc'ns, Inc. , 531 F.3d 849, 855 (D.C. Cir. 2008) (cleaned up). The duty must be incontrovertible and not a matter within the agency's discretion. See Thomas v. Holder , 750 F.3d 899, 904 (D.C. Cir. 2014) (explaining that "if the act [petitioners] seek to compel is discretionary," then the writ cannot issue, "as government officials have no clear duty to perform such acts"). Under the All Writs Act, we may issue only those...