OSHA ETS Challenge

Case: 21-4114 Document: 1-1 Filed: 11/23/2021 Page: 1 (1 of 170)
UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540
Deborah S. Hunt POTTER STEWART U.S. COURTHOUSE Tel. (513) 564-7000
Clerk CINCINNATI, OHIO 45202-3988 www.ca6.uscourts.gov
Filed: November 23, 2021
Mr. Edmund Charles Baird

U.S. Department of Labor
Office of the Solicitor
200 Constitution Avenue, N.W.
Suite S-4004
Washington, DC 20210
Mr. Christopher David Wiest

Law Office
25 Town Center Boulevard
Suite 104
Crestview Hills, KY 41017
Re: Case No. 21-4114, In re: Betten Chevrolet, Inc v. OSHA, et al

Originating Case No. OSHA 2021-0007
Dear Counsel:
The petition for review has been opened with Case No. 21-4114 and has been consolidated
with the transferred and originating petitions received under the November 16, 2021,
Consolidation Order from the United States Judicial Panel on Multidistrict Litigation. The court
has designated Case No. 21-7000 as the lead case for all of the petitions.
Please note that all filings must include both case numbers. All of the petitions for review
originating in the Sixth Circuit and all of transferred petitions have been consolidated. Filings
made in CM/ECF will automatically appear on all case dockets unless they are specifically limited
to the individual cases. Therefore, when filing in CM/ECF, it is necessary for the filer to “deselect”
individual case numbers (other than the lead case) in which he or she has not appeared as a party.
If a filing, including a brief, is filed in an individual case in which the party has not appeared, the
document will be subject to removal by the clerk without further notice. The official caption is
enclosed.
The following forms should be downloaded from the web site and filed with the Clerk's
office by December 7, 2021.
Petitioner: Appearance of Counsel

Disclosure of Corporate Affiliations
Application for Admission to 6th Circuit Bar (if applicable)
Respondent: Appearance of Counsel
More specific instructions are printed on each form.
The Rules and Internal Operating Procedures of the Sixth Circuit, effective December 1,
2020, are available on our website, www.ca6.uscourts.gov/.
Additional instructions and procedural guidance will be forthcoming.
Please contact the clerk’s office with questions.
Sincerely,
Deborah S. Hunt
Clerk of Court
Enclosure
OFFICIAL COURT OF APPEALS CAPTION FOR 21-4114
In re: MCP NO. 165., OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION

RULE ON COVID-19 VACCINATION AND TESTING, 86 FED. REG. 61402
------------------------------
BETTEN CHEVROLET, INC
Petitioner
v.
OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION, U.S. DEPARTMENT OF

LABOR; MARTIN J. WALSH, Secretary, U.S. Department of Labor
Respondents
No. 21-______
IN THE UNITED STATES COURT OF APPEALS
BETTEN CHEVROLET, INC.,

PETITIONER,
v.
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,

DEPARTMENT OF LABOR, AND
MARTIN J. WALSH, U.S. SECRETARY OF LABOR
RESPONDENTS
Petition for Review
Aaron Siri
Elizabeth A. Brehm
Siri & Glimstad LLP
200 Park Avenue,
17th Floor
New York, NY 10166
[Tel.] (212) 532-1091
[Fax] (646) 417-5967
aaron@sirillp.com
ebrehm@sirillp.com
Ursula Smith
Siri & Glimstad LLP
100 Congress Ave.,
1
Suite 2000-4590
Austin, TX 78701
[Tel.] (512) 265-5622
usmith@sirillp.com
Christopher Wiest
Chris Wiest, Attorney at Law, PLLC
25 Town Center Blvd, Ste. 104
[Tel.] (513) 257-1895
chris@cwiestlaw.com
2
CERTIFICATE OF INTERESTED PERSONS

Pursuant to FRAP 15(c), Petitioners state that the challenged order/rule was
not issued for public comment and thus there were no persons who participated
before the agency. Therefore, only Respondents the Occupational Health and
Safety Administration, Department of Labor, and the Secretary of Labor, Martin J.
Walsh, in his official capacity, need to be served. Opposing Counsel will be the
U.S. Department of Justice.
PETITION FOR REVIEW
Pursuant to § 6(f) of the Occupational Safety and Health Act, 29 U.S.C.
§ 655(f), and Federal Rule of Appellate Procedure 15, the Petitioner, Betten
Chevrolet, Inc. (“Betten” of “Petitioner”) petitions the Court for review of the
Emergency Temporary Standard addressing occupational exposure to COVID-19,
issued by the Respondent, Occupational Safety and Health Administration, United
States Department of Labor (“OSHA” or “Respondent”), and published in the
Federal Register on November 5, 2021, at Volume 86, pages 61402 through 61555
(the “ETS”). A copy of the ETS is attached to this Petition as Exhibit A.
The ETS requires all employers with more than 100 employees to mandate
that their workers be fully vaccinated against COVID-19 – or to subject
unvaccinated workers to weekly COVID-19 testing and masking at work. Petitioner
petitions for review of this ETS mandate on the grounds that, without limitation, 1) it
3
exceeds OSHA’s authority under its enabling statute, 2) it exceeds Congress’s
authority under the Interstate Commerce Clause, 3) it exceeds Congress’s authority
under the nondelegation doctrine, 4) it is arbitrary and capricious, and 5) it is not
supported by substantial evidence in the record, considered as a whole.
Petitioner is a General Motors automobile dealership incorporated under the
laws of Michigan with a principal place of business in Michigan. Petitioner has been
in operation since 1961. Petitioner has over 100 employees and is therefore subject
to OSHA’s ETS. This means that Petitioner will be responsible for implementing
a policy to ensure that all its employees are either fully vaccinated for COVID-19 or
are getting regularly tested.
Petitioner will be adversely affected by the ETS for a multitude of reasons.
First, Petitioner faces a shortage of full-time employees, and many of the current and
prospective employees do not want to be forced to receive the COVID-19 vaccine
or be subjected to or pay for weekly testing. Critically, there are at least twelve other
competitors in the immediate vicinity of Petitioner’s principal place of business that
all employ fewer than 100 employees and as such are not subject to the ETS.
Therefore, those dealerships will be able to hire the employees that leave Petitioner
because they do not require their employees to be vaccinated or to pay for regular
testing. Replacing these employees will be extremely difficult for Petitioner and
4
will take time and resources. Thus, the ETS will make it even more difficult to hire
new employees and retain current employees in an already tight labor market.
In addition to losing long-standing and highly trained employees, Petitioner
may be forced to hire new staff to implement the administrative requirements
pursuant to the ETS, which places further financial and administrative burdens on
Petitioner. Petitioner has no existing tracking system for gathering and securing
employee health information. To date, Petitioner does not know the vaccination
status of its employees. Employees responsible for implementing and enforcing the
ETS will need to be trained and will then have to dedicate their time to this new task.
The ETS is currently harming Petitioner because although the deadline has
not yet arrived for compliance, if and when that deadline does arrive, Petitioner
needs to be prepared. Therefore, advance planning is necessary for compliance, and,
given the significance of the proposed penalties, which Petitioner understands is a
legitimate and realistic threat, Petitioner must begin preparing to comply
immediately, not on any future compliance date. Additionally, Petitioner will very
likely bear the cost of worker’s compensation premium increases for employee
injuries caused by the COVID-19 vaccine mandated as a condition of employment.
Alternatively, if Petitioner attempts to avoid being subject to the ETS,
Petitioner will have to consider moving employees around to other locations or
5
terminating the employment of sufficient number of its employees to no longer fall
under the standard, which will significantly harm its business.
Petitioner also employs at least one employee who works remotely but
understands that this person counts towards the 100 employee count as it relates to
the ETS. Despite the fact that this employee does not interact with any other
employees, he would be subject to the mandate which seems nonsensical.
For these reasons, Petitioner petitions this Court to review the ETS
immediately, and they will file an Opening Brief in accordance with any briefing
schedule set by the Court.
Dated: November 22, 2021 SIRI & GLIMSTAD, LLP
/s/Christopher D. Wiest
By: _______________________
Aaron Siri
Elizabeth A. Brehm
Ursula Smith
CHRIS WIEST ATTORNEY AT

LAW, PLLC
Christopher Wiest
Attorneys for Plaintiff

BETTEN CHEVROLET, INC.
6
No. 21-______
IN THE UNITED STATES COURT OF APPEALS
BETTEN CHEVROLET, INC.,

PETITIONER,
v.
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,

DEPARTMENT OF LABOR, AND
MARTIN J. WALSH, U.S. SECRETARY OF LABOR
RESPONDENTS
Declaration of Bryan Betten in Support of Petition for Betten

Chevrolet, Inc.
Aaron Siri
Elizabeth A. Brehm
Siri & Glimstad LLP
200 Park Avenue,
17th Floor
New York, NY 10166
[Tel.] (212) 532-1091
[Fax] (646) 417-5967
aaron@sirillp.com
ebrehm@sirillp.com
Ursula Smith
Siri & Glimstad LLP
100 Congress Ave.,
1
Suite 2000-4590
Austin, TX 78701
[Tel.] (512) 265-5622
usmith@sirillp.com
Christopher Wiest
Chris Wiest, Attorney at Law, PLLC
[Tel.] (513) 257-1895
chris@cwiestlaw.com
I, Bryan Betten, declare as follows:
1. I am at least 18 years of age and am competent to testify. I have personal
knowledge of the statements contained in this declaration.
2. I am the Chief Executive Officer of Betten Chevrolet, Inc. (“Betten”).
3. Betten is a General Motors automobile dealership incorporated under the laws
of Michigan with a principal place of business in Michigan. Betten has been in
operation since 1961.
4. Betten has over 100 employees and is therefore subject to OSHA’s COVID-19
Vaccination and Testing; Emergency Technical Standard (“ETS”) released on
November 5, 2021. This means that Betten will be responsible for
implementing a policy to ensure that all its employees are either fully
vaccinated for COVID-19 or are getting regularly tested.
2
5. Betten will be adversely affected by the ETS for a multitude of reasons. First,
Betten faces a shortage of full-time employees, and many of the current and
prospective employees do not want to be forced to receive the COVID-19
vaccine or be subjected to or pay for weekly testing.
6. Critically, there are at least twelve other competitors in the immediate vicinity
of Betten’s principal place of business that all employ fewer than 100
employees and as such are not subject to the ETS. Therefore, those dealerships
will be able to hire the employees that leave Betten because they do not require
their employees to be vaccinated or to pay for regular testing. Replacing these
employees will be extremely difficult for Betten and will take time and
resources. Thus, the ETS will make it even more difficult to hire new
employees and retain current employees in an already tight labor market.
7. In addition to losing long-standing and highly trained employees, Betten may
be forced to hire new staff to implement the administrative requirements
pursuant to the ETS, which places further financial and administrative burdens
on Betten. Betten has no existing tracking system for gathering and securing
employee health information. To date, Betten does not know the vaccination
status of its employees. Employees responsible for implementing and enforcing
the ETS will need to be trained and will then have to dedicate their time to this
new task.
3
8. The ETS is currently harming Betten because although the deadline has not yet
arrived for compliance, if and when that deadline does arrive, Betten needs to
be prepared. Therefore, advance planning is necessary for compliance, and,
given the significance of the proposed penalties, which Betten understands is a
legitimate and realistic threat, Betten must begin preparing to comply
immediately, not on any future compliance date.
9. Additionally, Betten will very likely bear the cost of worker’s compensation
premium increases for employee injuries caused by the COVID-19 vaccine
mandated as a condition of employment.
10.Alternatively, if Betten attempts to avoid being subject to the ETS, Betten will
have to consider moving employees around to other locations or letting
employees go.
11.Betten also employs at least one employee who works remotely but understands
that this person counts towards the 100-employee count as it relates to the ETS.
Even though this employee does not interact with any other employees, he
would be subject to the mandate which seems nonsensical.
4
UNITED STATES COURT OF APPEALS

Disclosure of Corporate Affiliations

and Financial Interest
Sixth Circuit
Case Number: 21- Case Name: Betten Chevrolet, Inc. v O.S.H.A., et al.
Name of counsel: Christopher Wiest, Esq.
Pursuant to 6th Cir. R. 26.1, Betten Chevrolet, Inc.

Name of Party
makes the following disclosure:
1. Is said party a subsidiary or affiliate of a publicly owned corporation? If Yes, list below the
identity of the parent corporation or affiliate and the relationship between it and the named
party:
No.
2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest
in the outcome? If yes, list the identity of such corporation and the nature of the financial
interest:
Not applicable.
CERTIFICATE OF SERVICE
22 November, 2021
I certify that on _____________________________________ the foregoing document was served on all
parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not,
by placing a true and correct copy in the United States mail, postage prepaid, to their address of record.
s/ Christopher Wiest
This statem ent is filed twice: when the appeal is initially opened and later, in the principal briefs,
im m ediately preceding the table of contents. See 6th Cir. R. 26.1 on page 2 of this form .
6CA-1
8/08 Page 1 of 2

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Case: 21-4114 Document: 1-1 Filed: 11/23/2021 Page: 1 (1 of 170)

UNITED STATES COURT OF APPEALS

Filed: November 23, 2021

Mr. Edmund Charles Baird

Mr. Christopher David Wiest

Re: Case No. 21-4114, In re: Betten Chevrolet, Inc v. OSHA, et al

Petitioner: Appearance of Counsel

Respondent: Appearance of Counsel

More specific instructions are printed on each form.

Additional instructions and procedural guidance will be forthcoming.

Please contact the clerk’s office with questions.

OFFICIAL COURT OF APPEALS CAPTION FOR 21-4114

In re: MCP NO. 165., OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION

BETTEN CHEVROLET, INC

OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION, U.S. DEPARTMENT OF

FOR THE SIXTH CIRCUIT

BETTEN CHEVROLET, INC.,

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,

Petition for Review

CERTIFICATE OF INTERESTED PERSONS

Safety Administration, Department of Labor, and the Secretary of Labor, Martin J.

U.S. Department of Justice.

PETITION FOR REVIEW

Pursuant to § 6(f) of the Occupational Safety and Health Act, 29 U.S.C.

Emergency Temporary Standard addressing occupational exposure to COVID-19,

issued by the Respondent, Occupational Safety and Health Administration, United

States Department of Labor (“OSHA” or “Respondent”), and published in the

(the “ETS”). A copy of the ETS is attached to this Petition as Exhibit A.

that their workers be fully vaccinated against COVID-19 – or to subject

unvaccinated workers to weekly COVID-19 testing and masking at work. Petitioner

exceeds OSHA’s authority under its enabling statute, 2) it exceeds Congress’s

authority under the Interstate Commerce Clause, 3) it exceeds Congress’s authority

under the nondelegation doctrine, 4) it is arbitrary and capricious, and 5) it is not

supported by substantial evidence in the record, considered as a whole.

Petitioner is a General Motors automobile dealership incorporated under the

are getting regularly tested.

Petitioner will be adversely affected by the ETS for a multitude of reasons.

prospective employees do not want to be forced to receive the COVID-19 vaccine

competitors in the immediate vicinity of Petitioner’s principal place of business that

In addition to losing long-standing and highly trained employees, Petitioner

may be forced to hire new staff to implement the administrative requirements

needs to be prepared. Therefore, advance planning is necessary for compliance, and,

given the significance of the proposed penalties, which Petitioner understands is a

legitimate and realistic threat, Petitioner must begin preparing to comply

injuries caused by the COVID-19 vaccine mandated as a condition of employment.

Alternatively, if Petitioner attempts to avoid being subject to the ETS,

Petitioner will have to consider moving employees around to other locations or

terminating the employment of sufficient number of its employees to no longer fall

under the standard, which will significantly harm its business.

employees, he would be subject to the mandate which seems nonsensical.

schedule set by the Court.

Dated: November 22, 2021 SIRI & GLIMSTAD, LLP

CHRIS WIEST ATTORNEY AT

Attorneys for Plaintiff

FOR THE SIXTH CIRCUIT

BETTEN CHEVROLET, INC.,

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,

Declaration of Bryan Betten in Support of Petition for Betten

I, Bryan Betten, declare as follows:

1. I am at least 18 years of age and am competent to testify. I have personal

knowledge of the statements contained in this declaration.

2. I am the Chief Executive Officer of Betten Chevrolet, Inc. (“Betten”).

3. Betten is a General Motors automobile dealership incorporated under the laws