Whither Equity? NFIB v. OSHA and BPSOF v. Wu

A happy Martin Luther King Day to all Letters Blogatory readers!

The most radical rule in the Federal Rules of Civil Procedure, adopted in the 1930s, is Rule 2. When adopted, it read: “There shall be one form of action to be known as ‘civil action.'” The rule has been basically unchanged since then, with the exception of a Bryan Garner-influenced em-dash. It now reads: “There is one form of action—the civil action.”

On the one hand, the rule, which has been adopted in many states also, was the final death of the wonderful old system of original writs, which had already been mostly undermined by the pleading reforms of the nineteenth century, here and in England. No more writs of assumpsit or trespass square clause fregit. But on the other hand, the rule unified the procedure in law and equity. Historically, there were separate systems of courts for the common law (common pleas, the king’s bench) and equity (chancery), which still exists in some states. Even when single courts began to administer both law and equity, they had a “law side” and an “equity side” and kept the two separate.

I’m not saying out loud that the merger of law and equity was a bad idea. But I do think that procedural simplification has led to a decline in the bar’s understanding of the substantive differences between law and equity, which were supposed to be unaffected by Rule 2. If I were in charge of the law school curriculum, we all would have to learn a lot about the forms of action and the history of law and equity. It would make for better lawyers. I want you to read about the two cases of the day and tell me what you think about how courts are doing with law and equity.

The two cases are National Federation of Independent Business v. OSHA (S. Ct. 2022) and Boston Police Superior Officers Association v. Wu (Mass. Super. Ct. 2022). Both involved challenges to COVID vaccine mandates. the NFIB case was a challenge to the Occupational Health and Safety Administration’s national vaccine mandate for large employers, while the Boston Police case was a challenge by public employee unions to Mayor Michelle Wu’s new policy of requiring vaccines as a condition of public employment. Both cases involved requests for emergency relief, seeking to stay or enjoin the vaccine mandates while the litigation is pending.

Without getting too technical, these are equitable decisions. Courts faced with these requests require the party seeking to say to make some showing of likelihood that it will succeed on the merits. If that party can make a showing of likelihood of success, then the court asks about whether the applicant would suffer irreparable harm without relief, and about the balance of the harms.

How did the Supreme Court approach the problem? On the issue of likelihood of success, the Court acknowledged that Congress had given OSHA the power to set workplace health and safety standards, but it said that COVID-19 was not a workplace health and safety issue, but a health and safety issue that affects everyone in and out of the workplace. This is not primarily a post about administrative law, and so I leave it to you to decide whether OSHA, which regulates fire hazards, drinking water quality, noise levels, and many other hazards that exist both in and out of the workplace, had the power to impose health measures in response to the pandemic, and whether the Court gave the proper degree of deference to OSHA’s decision. The bottom line is that the Court held the challengers were likely to prevail on their argument that OSHA had exceeded its authority.

But what followed? Ordinarily, you would want to see a weighing of the risks and the harms, so that the court could decide whether to grant the extraordinary remedy of a stay. The Court disposed of this issue as an afterthought:

The equities do not justify withholding interim relief. We are told by the States and the employers that OSHA’s mandate will force them to incur billions of dollars in unrecoverable compliance costs and will cause hundreds of thousands of employees to leave their jobs. For its part, the Federal Government says that the mandate will save over 6,500 lives and prevent hundreds of thousands of hospitalizations.

It is not our role to weigh such tradeoffs. In our system of government, that is the responsibility of those chosen by the people through democratic processes. Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.

Really? The Court, which issued an unsigned, per curiam decision, seems to have collapsed the question before it–whether to enjoin the government from implementing the new OSHA rule–into the question of the merits, and to have dropped the other equitable factors from the analysis entirely. As the dissenters pointed out, in other politically charged cases, for example, the challenge to the Trump Administration’s rule suspending entry of aliens from several Muslim-majority countries and reducing the number of refugees the United States would admit, the Court insisted on the need for the traditional equitable analysis in the course of denying large parts of the challenge to the government’s new rules. While I bemoaned the modern disregard for the differences between law and equity, I certainly don’t think the justices of the Supreme Court are confused about how equity works. Again, I leave it to you to ponder questions such as the politicization of the Court.

Now let’s look at the second case, Boston Police v. Wu. The City of Boston is requiring COVID-19 vaccination as a condition of employment. Several public employee unions challenged the rule on the grounds that the City had adopted it in violation of the law on collective bargaining. As with the last case, I’ll leave it to you to decide whether a public employee’s union should be demanding some kind of quid pro quo before agreeing to a basic public health measure that all its members should be volunteering to take anyway. In any event, the Superior Court judge found that the question of likelihood of success was uncertain, given that the City changed its policy after the severity of the Omicron variant of the virus became evident. But his decision indicates that he was leaning on this question in favor of the unions.

But the judge didn’t therefore enjoin the City’s policy. The judge, correctly, laudably, and 100% orthodoxly noted that the unions could not obtain an injunction unless they showed irreparable harm and that the balance of harms favored the injunction. The threat of firing was not irreparable harm (because it could be remedied with money and reinstatement). Happily, the unions did not argue that vaccination itself was an irreparable harm, although in today’s climate I think that argument is not unimaginable. The judge also found that the balance of harms favored the City, given the severity of the pandemic.

Which decision do you think will stand the test of time?

Martin Luther King, Jr.

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