[00:00:00] Speaker 03: Case number 22-1002, Inray National Nurses United adult petitioners. [00:00:06] Speaker 03: Ms. [00:00:07] Speaker 03: Darrow for the petitioners, Mr. Gilliland for the respondents. [00:00:12] Speaker 01: Good morning, counsel. [00:00:13] Speaker 01: Ms. [00:00:13] Speaker 01: Darrow, please proceed when you're ready. [00:00:17] Speaker 03: Good morning, and may it please the court. [00:00:19] Speaker 03: 650 Americans died of COVID-19 yesterday, and a similar number will likely die today. [00:00:26] Speaker 03: Although no federal agency has a complete count of healthcare worker infections and deaths, the incomplete numbers that we do have are staggering. [00:00:35] Speaker 03: Since the beginning of the pandemic, more than a million nurses and other healthcare workers have become infected with COVID-19, and more than 4,100 have died [00:00:45] Speaker 03: According to data provided by CMS, in January and February of 2022, just after OSHA announced that it was rescinding the emergency temporary standard at issue in this case, 18% of all nursing home workers became infected with COVID-19 in just those two months alone. [00:01:06] Speaker 03: The daily rate of death is higher now than it was in June of 2021 when OSHA found that the emergency temporary standard was necessary. [00:01:14] Speaker 03: At that time, as OSHA noted in the preamble to the ETS, the rate of death was about 500 per day. [00:01:23] Speaker 03: COVID-19 is, as OSHA said in its brief in this case, an unprecedented crisis. [00:01:29] Speaker 03: OSHA has also said that the impact of the pandemic has been borne disproportionately by nurses and healthcare workers who are called to care for those who become infected. [00:01:41] Speaker 03: Yet OSHA has left those very workers without necessary protections in violation of its clear statutory duty. [00:01:48] Speaker 03: When Congress passed the Osh Act in 1970, it had the foresight to equip the agency with both the tools and the mandate to act quickly to protect workers in an emergency situation like the one we face today. [00:02:03] Speaker 05: The statute... Mr. Stero, as a practical matter, is the current ETS still in effect in your view and how is that [00:02:13] Speaker 05: actually being implemented on the ground? [00:02:15] Speaker 05: Because it hasn't been formally withdrawn. [00:02:18] Speaker 03: Correct. [00:02:18] Speaker 03: And thank you for that question. [00:02:20] Speaker 03: On December 27, OSHA announced in a public statement published on its website, which is included as exhibit one to our petition, that it was withdrawing the emergency temporary standard. [00:02:34] Speaker 03: It has never walked back that position, aside from in a footnote in its brief to this court. [00:02:43] Speaker 03: OSHA Secretary Parker has also announced that the agency has a non-enforcement policy with respect to the emergency temporary standard. [00:02:53] Speaker 03: In our experience on the ground, my union represents registered nurses who work primarily in acute care hospitals. [00:02:59] Speaker 03: And when nurses have made complaints to OSHA, which they have continued to do, specifically two complaints were made in February by nurses at hospitals in Florida, both owned by the same health care corporation, they complained to OSHA that [00:03:16] Speaker 03: Their employer had not notified employees of a COVID exposure in the workplace and other violations of the ETS. [00:03:23] Speaker 03: And they were told by field agents specifically that the ETS had expired and that they were no longer enforcing it and would not inspect. [00:03:31] Speaker 03: So as a practical matter, the December announcement that it was being rescinded, [00:03:40] Speaker 03: public statement by the secretary of a non-enforcement policy and then apparent instructions to field agents that the ETS has expired and shouldn't be enforced. [00:03:51] Speaker 03: The practical effect of all of that is that healthcare workers lack the necessary protections that OSHA itself found required to protect them. [00:04:02] Speaker 00: The main of your complaint before us or your petition before us is that the agency has not [00:04:10] Speaker 00: going forward with the permanent regulation by the date suggested by Congress. [00:04:18] Speaker 00: Is that a correct statement? [00:04:21] Speaker 03: Our complaint about the agency's conduct has two [00:04:28] Speaker 03: two components. [00:04:29] Speaker 03: One is that it is treating the emergency temporary standard as rescinded, which is a violation of Section 62, and also that it did not issue a permanent standard within the six-month timeline that is required under Section 63. [00:04:46] Speaker 00: That's the one that I'm troubled about, about your case on that. [00:04:55] Speaker 00: We had a case not involving anything parallel to this, [00:04:59] Speaker 00: Tangentially, back in 1988, there was an N.R.D.C. [00:05:04] Speaker 00: brought in action against the deal for not meeting the congressional schedule. [00:05:12] Speaker 00: And then Judge Ruth Ginsburg at the time wrote that where Congress has put a timeline like that into statute without specifying a remedy, Congress did not intend to subject it to judicial scrutiny. [00:05:28] Speaker 00: and that there would not be, would not be within the compass of the court to enforce that deadline. [00:05:37] Speaker 00: Isn't that, in that sense, at least parallel to this case? [00:05:44] Speaker 00: It's NRDC versus Hodel. [00:05:49] Speaker 03: In this case, [00:05:54] Speaker 03: In this case, the clear statutory text is that OSHA has a six-month timeline for issuing a permanent standard. [00:06:02] Speaker 03: The purpose of that is to require that OSHA act quickly and expedite its proceedings. [00:06:11] Speaker 00: Yeah, in Hodel, it was a reporting requirement and not a rulemaking. [00:06:15] Speaker 00: So it is distinguishable. [00:06:16] Speaker 00: But it was a reporting requirement that Congress imposed on the agency. [00:06:21] Speaker 00: And it clearly had passed. [00:06:24] Speaker 00: recording deadline reporting deadline. [00:06:26] Speaker 00: It clearly had passed and in is a unanimous opinion written by then Judge with later Ginsburg to the effect that when Congress puts that limitation in there, family does not specify a judicial remedy. [00:06:42] Speaker 00: That is a matter between the political branches and not something that can be remedied by the court. [00:06:51] Speaker 03: I'd also like to add that OSHA's own regulations interpret that statute, interpret that portion of the statute as mandatory. [00:07:02] Speaker 03: The regulations provide that OSHA must expedite its own proceedings in order to meet the six-month timeline, which it views as required. [00:07:12] Speaker 00: Now, you know you're asking an extraordinary remedy in mandamus, and it is supposed to be that you are clearly entitled to the relief [00:07:20] Speaker 00: before we can mandamus dark. [00:07:22] Speaker 00: Are you clearly entitled to this relief here? [00:07:25] Speaker 03: I believe so. [00:07:26] Speaker 03: I do understand that it is an extraordinary remedy, and I think that this is an extraordinary situation. [00:07:32] Speaker 03: The OSHA itself, again, in the preamble to the ETS, estimated that the multilayered approach that the ETS requires in healthcare settings will save about 776 lives and prevent 300,000 infections of healthcare workers in a six-month time period. [00:07:50] Speaker 03: So the loss of life in this case that is attributed to OSHA's non-action is quite extraordinary. [00:07:59] Speaker 03: The statute is unambiguous. [00:08:02] Speaker 03: Um, OSHA has not provided this court with any sort of statement that the court may defer to except for in the ETS itself in which OSHA says that it will remain in effect until it's superseded by a permanent standard [00:08:21] Speaker 03: And the ETS itself contains no expiration date on its own terms. [00:08:26] Speaker 03: So we believe the extraordinary remedy is warranted here. [00:08:31] Speaker 05: Mr. Awad, the circumstances of the pandemic are certainly extraordinary. [00:08:35] Speaker 05: We still have to find that there's a clear duty for OSHA to act in an expedited manner here. [00:08:41] Speaker 05: And so where does that clear duty come from? [00:08:46] Speaker 05: I think that is, [00:08:48] Speaker 05: That's difficult here because the secretary can promulgate an emergency temporary standard. [00:08:53] Speaker 05: And then the statute requires moving forward with a permanent standard, you know, within six months. [00:09:01] Speaker 05: But in the process of 655B, the secretary can always determine [00:09:07] Speaker 05: to that a permanent standard is no longer necessary. [00:09:11] Speaker 05: It's not clear from the statute that they must promulgate a permanent standard. [00:09:16] Speaker 05: They could do an emergency standard, and then the secretary could conclude within the secretary's discretion that such a permanent standard was not necessary. [00:09:25] Speaker 05: So if that's the case, then where's the clear duty for OSHA to do this permanent standard? [00:09:30] Speaker 03: The secretary could conclude that, but in this case has not. [00:09:34] Speaker 03: The secretary made a finding that healthcare workers face a grave danger, that the provisions of the ETS are necessary for healthcare workers, and that finding has never been withdrawn or rescinded in any way. [00:09:48] Speaker 03: OSHA has never made a statement. [00:09:49] Speaker 03: It has never reached the end of the 6B process and concluded that the standards were necessary. [00:09:57] Speaker 05: So even if it is necessary, then why, I mean, the OSHA has represented, the Department of Labor has represented that they're going to finish the permanent standard within, I don't know, I think they said six to nine months. [00:10:12] Speaker 05: Why is that insufficient? [00:10:14] Speaker 05: Or why is there a clear duty that they have to do so faster? [00:10:17] Speaker 05: I mean, they're suggesting that it's impossible for them to do it faster. [00:10:22] Speaker 03: So the combination of the non-enforcement of the ETS in this interim period and their failure to issue a permanent standard within six months has created a temporal gap of an indefinite period of time during which health care workers who face a grave danger at work lack necessarily [00:10:46] Speaker 03: And the statute doesn't contemplate that gap contemplates continuous protection for the workers who need it most. [00:10:54] Speaker 00: What would our our mandamus look like? [00:10:58] Speaker 00: What would we be specifically mandating the agency to do? [00:11:03] Speaker 03: Thank you. [00:11:08] Speaker 03: What we seek is an order. [00:11:12] Speaker 03: from this court that should give full effect to the to the emergency temporary standard until it is superseded by a permanent. [00:11:20] Speaker 03: And also that. [00:11:22] Speaker 03: that if the ETS remains in effect in this interim period, the sense of urgency for the permanent standard is somewhat abated, but OSHA should be directed to adhere to its own timeline that it has proposed to this court or suggested to the court as feasible. [00:11:41] Speaker 03: And that's six to nine months from when they filed the agreement. [00:11:47] Speaker 03: They have not been... [00:11:48] Speaker 03: They are required by their own regulations to expedite the process. [00:11:52] Speaker 03: And in this case, they've let significant amounts of time go by from the time that they proposed the rule in the form of an emergency. [00:12:00] Speaker 00: So far as the effectiveness, continued effectiveness of the emergency measure, the legal record before us is that it is still in effect, isn't it? [00:12:14] Speaker 00: Is that not the case? [00:12:15] Speaker 03: That is not the case. [00:12:18] Speaker 03: OSHA has not said that in its briefing to this court. [00:12:23] Speaker 03: It made the public announcement in December, and then it has been acting in accordance with that public announcement that the ETS is withdrawn. [00:12:34] Speaker 01: So can I ask you, Ms. [00:12:35] Speaker 01: Daryl, if we thought, suppose that the conclusion is made, and we'll ask the government about it, obviously, when they stand up, but that the emergency temporary standard is still in effect. [00:12:44] Speaker 01: If it's still in effect, then the relief you're asking for, and put aside the timeline for the promulgation of a permanent rule, just focusing on the ETS for now, the relief that you're asking for, if the ETS is still in effect, is that then the government has to enforce it? [00:13:01] Speaker 01: Is that the gap that remains if the ETS is in fact in effect? [00:13:08] Speaker 03: If this court holds that the ETS is in effect, then OSHA, of course, still has some prosecutorial discretion in order to determine in an individual case whether to prosecute or not, but it cannot maintain a blanket wholesale non-enforcement. [00:13:28] Speaker 03: It can't? [00:13:29] Speaker 05: It cannot. [00:13:30] Speaker 05: What authority do you have for that? [00:13:32] Speaker 03: I have a couple of cases. [00:13:35] Speaker 03: I think this concept was best expressed in the OSHA context in a district court case in this circuit. [00:13:50] Speaker 05: Surely you don't think this court could order OSHA to enforce its regulation. [00:13:57] Speaker 03: This court can order OSHA to give full effect to its regulation. [00:14:01] Speaker 03: And enforcement is one piece of that. [00:14:04] Speaker 03: There are other components, important components. [00:14:07] Speaker 00: I'm not sure where we would get the jurisdiction to do that. [00:14:11] Speaker 00: We have jurisdiction to review orders and judgments of agencies. [00:14:17] Speaker 00: But as far as the general execution of the law, [00:14:22] Speaker 00: That's I don't know of a statute that gives us jurisdiction to do that. [00:14:28] Speaker 03: What we're asking the court to do again is to give full effect to the emergency temporary standard. [00:14:34] Speaker 03: And that includes things in addition to enforcement to address if I have the opportunity. [00:14:40] Speaker 03: I'd also like to mention that the emergency temporary standard required states that have their own state OSHA plan to implement a standard that's equal to or better than the emergency temporary standard. [00:14:55] Speaker 03: Since December, many states that have their own state plan, including large states like Virginia and North Carolina, have withdrawn those state plans entirely and officially, leaving those workers completely unprotected. [00:15:11] Speaker 03: So if the ETS is ordered to be in effect, [00:15:16] Speaker 03: Those, regardless of OSHA's enforcement, those states will be required to have an ETS that is greater, that is equal to or better. [00:15:26] Speaker 03: And the importance of a uniform national standard is something that OSHA addressed in the emergency temporary. [00:15:33] Speaker 03: There were business groups who complained about there being a patchwork system that was impossible or burdensome to comply with in terms of COVID regulations in the workplace, and they asked for a national standard for that reason. [00:15:50] Speaker 05: Mr. Chair, those may or may not all be good policy reasons for OSHA to move forward, but we still have to, as a court, [00:15:58] Speaker 05: have jurisdiction over this matter. [00:16:00] Speaker 05: And as Judge Santel mentioned, there's the Hodel case. [00:16:04] Speaker 05: There's sort of a general background presumption that the executive branch [00:16:11] Speaker 05: needs to have the ability to organize its priorities, right? [00:16:16] Speaker 05: And this statute explicitly allows the secretary to set priorities. [00:16:20] Speaker 05: In light of all of that, I'd like you to say a little bit more about where there's a clear duty for OSHA to do this, a duty that gives us as a court jurisdiction to order OSHA to take one of the actions that you're pressing. [00:16:39] Speaker 03: Sure. [00:16:40] Speaker 03: So, it's true that OSHA does have discretion to organize its own priorities, and that discretion emanates from Section 6G of the Act. [00:16:52] Speaker 03: What 6G says is that OSHA must prioritize workplaces and industries where workers face the most urgent need for protection. [00:17:02] Speaker 03: And OSHA has determined that that is health care workers right now during the pandemic. [00:17:07] Speaker 03: So even exercising its 6G discretion, OSHA must prioritize these workers. [00:17:14] Speaker 05: OSHA is now saying, I mean, that is a priority, but they're saying there are other higher priorities, right? [00:17:20] Speaker 03: They have not said that. [00:17:22] Speaker 03: They said in the emergency temporary standard that healthcare workers face a disproportionate burden of the pandemic and they have never made any statement to the contrary. [00:17:35] Speaker 05: Well, they suggested that the vaccine ETS was of higher priority and so they spent resources pushing that out quickly and they said now they're going to turn back to this ETS. [00:17:46] Speaker 03: He did say in their in their brief that that the vaccine BTS precedent for a short period of time, which is it. [00:17:59] Speaker 03: But the reality of that timeline is that. [00:18:02] Speaker 03: That was issued in November following a September order by the administration that they implement such a standard. [00:18:10] Speaker 03: So there was a two-month period where they were working on that standard. [00:18:14] Speaker 03: It was struck down by the Supreme Court in January. [00:18:17] Speaker 03: And OSHA has, there's no evidence that they were expediting that proceeding, either in the issuance of the ETS or setting it for permanent rulemaking. [00:18:32] Speaker 03: Since January, that rule has not been in effect. [00:18:38] Speaker 03: And OSHA, just by way of example for their slow action in this case, the emergency temporary standard was issued in June. [00:18:48] Speaker 03: Normally, they'll set a hearing at the same time they announce a proposed rule or shortly thereafter. [00:18:53] Speaker 03: They didn't announce a hearing in this matter until a couple of weeks ago, and they set the hearing for April. [00:18:59] Speaker 03: A hearing was requested back in August. [00:19:02] Speaker 03: They didn't set it then. [00:19:03] Speaker 03: They let a lot of time go by and are not expediting the proceeding as they're required to both under the statute and under the rule. [00:19:14] Speaker 01: Hey, Mr. Let me make sure my colleagues don't have additional questions for you at this time. [00:19:20] Speaker 01: Yeah. [00:19:22] Speaker 01: Okay, then why don't we? [00:19:23] Speaker 01: We'll give you some time for rebuttal and we'll hear from the government now. [00:19:27] Speaker 01: Mr Gellin. [00:19:44] Speaker 02: Morning, Your Honors, and may it please the Court. [00:19:48] Speaker 02: The COVID-19 pandemic has required the Secretary to make difficult choices regarding the allocation of limited resources, that has included delaying the health care final rule in lieu of a separate ETS that was equally or more urgent. [00:20:08] Speaker 02: Those decisions by the secretary have been rational in the context of the statute. [00:20:13] Speaker 02: They've been based on legitimate statutory concerns, and they've been taken in good faith. [00:20:17] Speaker 01: Can I ask you at the outset, what is the government's position on whether the emergency temporary standard is still in effect? [00:20:25] Speaker 02: The emergency temporary standard has not been withdrawn in the sense that it is still in the post at the CF. [00:20:31] Speaker 01: Oh, wait. [00:20:33] Speaker 01: Can you speak directly into the mic? [00:20:34] Speaker 01: Sorry, I'm having a little trouble hearing you. [00:20:36] Speaker 02: Closer to you. [00:20:41] Speaker 02: The ETS is still in effect in the sense that it is on the books in the CFR. [00:20:45] Speaker 02: Ms. [00:20:46] Speaker 02: Darrow correctly described a position that OSHA has taken, that the December 27th announcement effectively announced a non-enforcement policy. [00:20:59] Speaker 02: And the secretary, as OSHA said it would, has been proceeding through enforcement and investigations of the general duty clause [00:21:08] Speaker 01: Yeah, so let me let me ask. [00:21:09] Speaker 01: Can I just study that? [00:21:10] Speaker 01: So so the government thinks the ETS is still in effect and the December 27th. [00:21:15] Speaker 01: So the government must believe then that it didn't expire by operation of law by operation of the statute after six months, right? [00:21:24] Speaker 01: Because that would have happened on December 21st. [00:21:27] Speaker 02: That's correct. [00:21:30] Speaker 02: Let me address the withdrawal specifically. [00:21:33] Speaker 01: Before you address the withdrawal, just the lapse of the six month would have preceded the withdrawal, right? [00:21:41] Speaker 01: Because that would have happened on December 21st. [00:21:44] Speaker 01: So I assume by virtue of the fact that the government on December 27 felt like it needed to say something about the ETS, then the government must believe that the ETS didn't expire on December 21st. [00:21:58] Speaker 02: Correct, Your Honor. [00:22:00] Speaker 02: The Secretary's position is not that the ETS automatically expires at six months. [00:22:06] Speaker 02: At the time that OSHA made the announcement on the 27th, OSHA expected that the rulemaking to finalize the healthcare rule was going to take many, many months. [00:22:16] Speaker 02: Best case scenario, there would have been six to nine months to finalize the vaccination and testing ETS, and then there would have been, best case scenario, another six to nine months to finalize the healthcare rule. [00:22:28] Speaker 02: So, given, you know, DICTA in many cases that have sort of either assumed that an ETS expires at six months or treated it as having a maximum duration, the Secretary believes – because the Secretary believes that Section 6G allows some extension in the rulemaking, the Secretary also believes that there's some reasonable amount of time that DHC can continue enforcing the ETS. [00:22:58] Speaker 02: with the extended period of time, whatever the outer bounds of that reasonable leeway is. [00:23:03] Speaker 02: Secretary, I believe it would exceed those bounds with its projection of how long that will make it the same. [00:23:10] Speaker 05: So I'm sorry, is it the secretary's position that the ETS does expire at six months or within some short period after six months, or just that it's unclear whether it expires after six months? [00:23:26] Speaker 02: Secretary's position [00:23:28] Speaker 02: is that it does not expire at six months because the Secretary has discretion to extend the rulemaking. [00:23:35] Speaker 02: The enforcement doesn't expire at six months. [00:23:37] Speaker 02: But enforcement of ECS is an extraordinary remedy for OSHA. [00:23:45] Speaker 02: And so OSHA believes there would be an unreasonable amount of time [00:23:52] Speaker 02: secretary could continue enforcing. [00:23:54] Speaker 00: You know, I'm not sure I've ever heard a yes or no is what the ocean position is that the DDS is in effect now. [00:24:04] Speaker 00: Just give me a yes or no. [00:24:05] Speaker 00: Is he in effect? [00:24:07] Speaker 02: And it is not being afford enforced. [00:24:09] Speaker 02: It is not. [00:24:10] Speaker 01: But is it in effect? [00:24:13] Speaker 01: Sorry, Judge Santel. [00:24:14] Speaker 01: I just wanna follow up on Judge Santel's question. [00:24:16] Speaker 01: Is it in effect? [00:24:17] Speaker 01: I know that you're saying that it's not being enforced and that gets to the question of enforcement discretion. [00:24:22] Speaker 01: And Judge Santel, if I've misinterpreted your question, I'm interested in the same answer. [00:24:27] Speaker 01: And I just wanna get an answer to not the enforcement question, but whether the emergency temporary standard is still in effect. [00:24:38] Speaker 01: I think that's what we're all asking for an answer to. [00:24:41] Speaker 01: Yes. [00:24:43] Speaker 05: Because that's important, right? [00:24:44] Speaker 05: Because obviously OSHA could begin enforcing something that it had previously decided not to enforce. [00:24:50] Speaker 02: Correct. [00:24:51] Speaker 02: And OSHA, on the 27th when OSHA announced that it would be withdrawing, the plan was to issue a federal register notice withdrawing, in which case it would not be. [00:25:01] Speaker 02: In light of this litigation, the fact that it was filed on an emergency basis, BNC decided not to go forward with [00:25:09] Speaker 02: issuing a Federal Register notice to remove the ETS from the Code of Federal Regulations in the event that this court then, you know, ordered the Secretary to continue enforcing, in which case the Secretary would have to issue another Federal Register notice. [00:25:27] Speaker 02: It would cause a lot of confusion with the regulated community. [00:25:30] Speaker 02: It could cause enforcement issues. [00:25:32] Speaker 05: What is your argument based on the statutory text that an ETS can continue in effect for six months if there's no superseding regulation? [00:25:56] Speaker 02: Well, as the petitioners point out, the text of the statute does say that an emergency temporary standard continues until superseded by standard. [00:26:07] Speaker 05: It has to be a standard promulgated in accordance with the procedures prescribed in paragraph three, right, C3. [00:26:16] Speaker 05: And so now that you're passed promulgating something within six months, does that mean that you have not promulgated a standard [00:26:26] Speaker 05: within the procedures prescribed by C3 and therefore the ETS lapses. [00:26:37] Speaker 02: Which has not promulgated a permanent standard pursuant to the 6B procedures. [00:26:44] Speaker 05: They haven't done it pursuant to C3, right, which requires following subsection B and promulgating a standard within six months. [00:27:00] Speaker 05: A permanent standard within six months. [00:27:03] Speaker 02: Correct. [00:27:04] Speaker 02: Your Honor, the Secretary views that six-month period to be the same as the other timelines in 6B that this court in the El Congreso cases determined based on 6B weren't etched in stone that the Secretary has discretion to exceed those. [00:27:24] Speaker 02: So I don't think that... [00:27:26] Speaker 02: to say that the secretary hasn't finalized the standard in six months. [00:27:29] Speaker 02: I don't think that necessarily. [00:27:31] Speaker 05: So even if I agree with you that the secretary has more than six months to finalize a standard, that doesn't go to the question about whether the emergency temporary standard lapses if you fail to promulgate a permanent standard within six months. [00:27:48] Speaker 05: Right, because those are two different questions. [00:27:49] Speaker 05: And maybe you need to take, maybe the agency has some discretion to take a longer time for a permanent standard. [00:27:54] Speaker 05: But C2 suggests that failure to do that perhaps, perhaps it suggests this. [00:28:01] Speaker 05: I'm interested in your argument about this, means that the emergency temporary standard simply lapses. [00:28:09] Speaker 02: I think reading the provision in the context of the section of 6C that says that it will continue until superseded by the standard. [00:28:18] Speaker 02: would allow the secretary to continue enforcing for a limited period of time after. [00:28:27] Speaker 02: And then that extension could be challenged under the track factors, just as this case is. [00:28:34] Speaker 02: In that case, the interests prejudiced by the delay would be the employer who is forced to continue complying. [00:28:41] Speaker 02: So it wouldn't be an unlimited amount of time. [00:28:44] Speaker 01: When you say it wouldn't be an unlimited amount of time, are you saying it wouldn't be an unlimited amount of time because an action could be brought like this one that would require, in response to which a court would require something to happen? [00:28:58] Speaker 01: Or suppose there's never any action? [00:29:00] Speaker 01: Suppose nobody ever brings a lawsuit. [00:29:02] Speaker 01: Is there something in the statute that, in your view, means that the emergency temporary standard goes past six months, but then lapses after some, I think you called it a reasonable period after six months? [00:29:15] Speaker 01: Where's that? [00:29:16] Speaker 01: Why wouldn't it just continue? [00:29:20] Speaker 02: Well, there is nothing I can point to in the statute that would [00:29:24] Speaker 02: require it to expire. [00:29:25] Speaker 02: But I believe it would operate in the same way that 6B standards operate, the secretary's discretion, in that area where employers can come to the court and say, you have unreasonably delayed. [00:29:38] Speaker 02: And they've done so in the court as in the Auctor case, UAW, UB, Donovan. [00:29:44] Speaker 02: That's how those cases have operated, that the secretary had discretion and at some point [00:29:49] Speaker 02: abuse that discretion by delaying too long. [00:29:52] Speaker 02: And I think that would be the same principle. [00:29:55] Speaker 01: And can I ask a follow-up question to Judge Rao's question about whether the ETS authority lapses automatically after six months? [00:30:04] Speaker 01: And I just want to make sure I understand the government's position on this. [00:30:08] Speaker 01: If it were true, I'm asking you to argue against yourself in a way, but bear with me for just a second. [00:30:15] Speaker 01: If it were true that the [00:30:19] Speaker 01: that the ETS lapses after six months because at that point, a permanent standard couldn't be adopted in accordance with C3. [00:30:27] Speaker 01: I think that's the question that Judge Rao puts to you and I have the same question. [00:30:32] Speaker 01: Then would it follow up from that, that then any permanent standard that came after six months also wouldn't be promulgated pursuant to C3. [00:30:40] Speaker 01: So you could never have a permanent standard either once you get past six months. [00:30:46] Speaker 01: In other words, do they go together? [00:30:52] Speaker 02: No, Your Honor, because the issuing the emergency temporary standard serves as a proposal, which then triggers the normal 6B processes. [00:31:05] Speaker 02: So the government's view that it would, the ETS itself would just be treated as an NPRM, notice of proposed rulemaking, and then the normal rules apply in terms of the, [00:31:21] Speaker 02: timeline and being able to bring that to a final. [00:31:26] Speaker 05: So then what's the limit on the secretary's ability to just do everything through emergency temporary standards? [00:31:34] Speaker 05: If you can do something as an emergency temporary standards, not following section B and not following the requirements of the APA and that standard continues [00:31:44] Speaker 05: you know, for some reasonable period of time, perhaps, and definitely what, I mean, that doesn't seem consistent with the scheme that Congress enacted. [00:31:53] Speaker 05: I mean, the emergency temporary standard is an exception, right? [00:31:57] Speaker 05: It's an exception to the ordinary procedures. [00:31:59] Speaker 05: It's, you know, and Congress explicitly says it's for six months, right? [00:32:03] Speaker 05: So it is temporary. [00:32:05] Speaker 05: So I'm not sure how the government can interpret it quite this way. [00:32:11] Speaker 02: The limit to what Bush can issue as an emergency temporary standard is in the high bar that it has to meet in order to issue it in the first place. [00:32:21] Speaker 02: The finding of grave danger and the finding that ETS is necessary to address that grave danger, which is a higher standard than the secretary has to meet in a normal rulemaking. [00:32:32] Speaker 02: So I think once the secretary makes that finding, it is reasonable [00:32:42] Speaker 02: It is reasonable to think that Congress intended that extraordinary situation to be addressed or at least reasonable. [00:32:53] Speaker 05: Is it, is there anything that precludes the secretary from issuing one ETS? [00:32:58] Speaker 05: And then if, if say, we assume that that lapses after six months by virtue of the statute, but the secretary then immediately enact [00:33:08] Speaker 05: a subsequent ETS for another six months, you know, along the same terms, you know, finding there's still a grave danger. [00:33:14] Speaker 05: We do this emergency. [00:33:15] Speaker 05: Could they, could the secretary keep doing that? [00:33:20] Speaker 05: Would that be consistent with the statute? [00:33:22] Speaker 05: Is there anything that prevents that from happening? [00:33:25] Speaker 02: The Florida peach growers based on the fifth circuit found that the secretary could [00:33:30] Speaker 02: It should make changes to issue subsequent ETS on this exact language, but under the same terms as he could issue an original. [00:33:40] Speaker 02: So I think in that in that scenario, if the secretary were to [00:33:46] Speaker 02: reaffirm a grave danger binding and that it was still necessary, then Secretary could reissue or revise the ETS. [00:33:57] Speaker 02: Again, still subject to a challenge from employers. [00:34:05] Speaker 01: Okay. [00:34:06] Speaker 01: Let me make sure my colleagues don't have additional questions for you, Mr. Gellin. [00:34:14] Speaker 01: Well, thank you for your argument. [00:34:16] Speaker 01: And we'll give Ms. [00:34:18] Speaker 01: Darrow two minutes for your rebuttal. [00:34:32] Speaker 03: Thank you. [00:34:32] Speaker 03: I'd first like to address the question from two of the judges about jurisdiction to order OSHA to expedite this standard. [00:34:41] Speaker 03: And this court has before, in public citizen health research group, the doctor, that's 702, F second, 1150, found that under six [00:34:57] Speaker 03: under 6G, it could order OSHA to put a particular standard at the top of its list of priorities and ordered expedited rulemaking towards that standard. [00:35:12] Speaker 03: Next, on this question of [00:35:17] Speaker 03: you know, whether a blanket non-enforcement policy is an exercise of prosecutorial discretion. [00:35:23] Speaker 03: The case that I was referring to earlier, the district court case, which applies OSHA in particular, applies this concept to OSHA in particular, finding that the [00:35:37] Speaker 03: An announcement, OSHA announced that it was no longer going to accept forms that it previously required, and that this amounted to not simply an exercise in its discretion to not enforce a rule, but the suspension of the requirements entirely, which the court found was outside of prosecutorial discretion. [00:35:58] Speaker 03: In this circuit, a similar concept, but under the Merchant Marine Act, [00:36:04] Speaker 03: is found in the case, Crowley Caribbean Transportation v. Pena. [00:36:09] Speaker 03: You can provide the site if you're interested. [00:36:11] Speaker 03: And the court distinguished between an unreviewable decision to forego enforcement in a particular case versus a reviewable statement of general policy of non-enforcement. [00:36:23] Speaker 03: And here, I think we've heard, it's undisputed that OSHA has a policy of non-enforcement, which is not- Are you bringing [00:36:33] Speaker 00: that statement of non-enforcement, if it is in fact a formal adoption of position, are you bringing that for review here? [00:36:44] Speaker 00: Your petition to the court, petition for mandamus, did not petition for review of the order, did it? [00:36:53] Speaker 03: The announcement of a blanket policy of non-enforcement was made in February after the briefing was completed in this case. [00:37:00] Speaker 03: And we are not seeking review. [00:37:03] Speaker 00: Right. [00:37:04] Speaker 00: So that's not before us. [00:37:06] Speaker 00: Correct. [00:37:07] Speaker 00: All that's left seems to be before us a general policy is being followed. [00:37:13] Speaker 00: And I don't know what our jurisdiction is. [00:37:16] Speaker 00: We had a case a few years ago concerning some oil and gas wells where we had that same situation. [00:37:22] Speaker 00: agreed that perhaps the agency was following the policy, but we didn't have an order before us to review, and we had no jurisdiction. [00:37:30] Speaker 00: So I'm not sure if we can review an announcement that wasn't even made at the time the petition was filed. [00:37:38] Speaker 03: The announcement was also made on December 27th, which is before this court, that it was withdrawing the ETS without any statement of reasons why, which is required under Section 6. [00:37:57] Speaker 03: of the act. [00:38:00] Speaker 03: I'd also just like to point out that OSHA has never before allowed an ETS to lapse after six months, even though it has issued emergency temporary standards that have continued in effect while the permanent rulemaking procedure continued taking longer than six months. [00:38:20] Speaker 03: And those cases are detailed in our brief. [00:38:23] Speaker 03: And to get to your question about what's to stop the Secretary from using his emergency powers to issue and reissue to get around 60 rulemaking, I agree with what Council said, which is that the standard is higher. [00:38:41] Speaker 03: There must be a finding of a grave danger and that the provisions are necessary to [00:38:46] Speaker 03: to prohibit that grave danger. [00:38:47] Speaker 03: What we're arguing in this case is that OSHA must expedite its permanent rulemaking so that that situation does not arise. [00:38:57] Speaker 03: We don't want the emergency temporary standard to be out there indefinitely. [00:39:02] Speaker 03: We want a permanent standard to be issued expeditiously in accordance with the statute, with the regulations, and with the prior case law of this circuit. [00:39:12] Speaker 03: If the secretary were to determine that the ETS should be modified in some way or extended, it can be modified. [00:39:24] Speaker 03: It could be reissued. [00:39:27] Speaker 03: And the secretary would have to, again, state its reasons for doing so as required under 6E. [00:39:34] Speaker 03: And in this case, there has been no 6E statement other than [00:39:40] Speaker 03: in the emergency temporary standard itself and its preamble, which establishes that the emergency temporary standard is necessary to prevent a great danger. [00:39:54] Speaker 01: Okay. [00:39:54] Speaker 01: Let me make sure my colleagues don't have additional questions for you, Mrs. Darrow, at this time. [00:40:01] Speaker 01: Thank you, counsel. [00:40:04] Speaker 01: Thank you to both counsel. [00:40:05] Speaker 01: We'll take this case under submission.