Amicus Brief for the SCOTUS OSHA Hearing

21A242, 21A243, 21A244, 21A245, 21A246,
21A247, 21A248, 21A249, 21A250, 21A251,
21A252, 21A258, 21A259, 21A260, and 21A267
In the Supreme Court of the United States _____________
NATIONAL FEDERATION OF INDEPENDENT BUSINESS, ET AL.,

Applicants,
v.

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET AL.,

Respondents.
_____________
STATE OF OHIO, ET AL.,
Applicants,
v.

DEPT. OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMIN., ET AL.,

Respondents.
_____________

On Applications for Stay of Administrative Action and Petition for a Writ
of Certiorari to the United States Court of Appeals for the Sixth Circuit

_____________

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF OF
AMERICAN COMMITMENT FOUNDATION, INC. AS AMICUS
CURIAE SUPPORTING APPLICANTS, A STAY OF AGENCY
STANDARD, AND CERTIORARI BEFORE JUDGMENT

_____________

LEONARD E. IRELAND,
JR.
18 N.W. 33RD COURT
Gainesville, FL 32607
(352) 376-4694

lireland@clayton-john-
ston.com

Counsel of Record

SELDON J. CHILDERS
CHILDERSLAW, LLC
2135-B NW 40th Terrace
Gainesville, FL 32605
(352) 335-0400
jchilders@smartbizlaw.com

Counsel for Movant-Amicus
LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

i

MOTION FOR LEAVE
TO FILE AMICUS CURIAE BRIEF
Amicus American Commitment Foundation, Inc.
respectfully moves for leave (1) to file the attached

amicus curiae brief in opposition to the eleven Emer-
gency Applications, filed on December 17– 20, 2021,

seeking a stay or injunction pending certiorari review

of the Sixth Circuit’s decision granting a motion to dis-
solve a stay of the Occupational Safety and Health Ad-
ministration (OSHA) Emergency Temporary Stand-
ard on COVID-19 vaccination and testing (ETS),

which was issued by the Fifth Circuit before being

transferred to the Sixth Circuit, and (2) to file the en-
closed brief without 10 days’ advance notice to the par-
ties of amicus’ intent to file.

Amicus provided notice to all parties of their intent
to file an amicus brief in opposition to the emergency
applications by email on January 4, 2022. Counsel for
the petitioners-applicants in 7 of the 15 applications—
Nos. 21A242, 21A243, 21A244, 21A246, 21A247,
21A248, 21A249, 21A250, 21A251, 21A252, 21A258,

21A259, 21A260 and 21A267—stated that they con-
sent or do not object to the filing.

American Commitment Foundation is a 501(c)(3)

charitable foundation organized to educate the gen-
eral public about concepts that advance economic free-
dom and constitutionally limited government, led by

its president Phil Kerpen. The Foundation was ad-

ii

vised in the preparation of this brief by epidemiolo-
gists Jay Bhattacharya of Stanford University and

Andrew Bostom of Brown University.
Specifically, the scientific and technical landscape

related to the Covid-19 pandemic is, like the virus it-
self, ever evolving. Amicus seek to file this brief to in-
form the Court of the latest developing scientific and

technical information related to the dominant viral

variant, referred to as “Omicron.” Amicus are confi-
dent that this information will inform and assist the

Court as it considers the weighty legal matters related
to this dispute.
Given the expedited consideration of this matter of

significant national interest, amicus respectfully re-
quest leave to file the enclosed brief without 10 days’

advance notice to the parties of intent to file. The

Sixth Circuit granted the government’s motion to dis-
solve the stay imposed by the Fifth Circuit on the

evening of December 17, 2021, and the applications
for a stay were filed in this Court on December 17, 18,
and 20. The Court set a deadline of December 30 for
respondent’s brief. Counsel for amicus provided notice
to all parties on January 4, 2022. Because of the rapid
schedule and because no party has opposed the filing,
amicus request that the Court grant leave to file the
attached amicus brief without 10 days’ advance notice
to the parties.
To the extent that leave is required, the proposed

amicus respectfully moves for leave to file the at-
tached brief on 81⁄2- by 11-inch paper rather than in

iii

booklet form, given the expedited briefing. Should the
Clerk’s Office or the Court so require, the proposed
amicus commit to re-filing expeditiously in booklet
format. See S. Ct. Rule 21.2(c).

CONCLUSION

For the foregoing reasons, amicus American Com-
mitment Foundation respectfully requests that the

Court grant this motion to file the attached proposed
amicus brief and accept it in the format and at the
time submitted.

Respectfully submitted,

LEONARD E. IRELAND, JR.
18 N.W. 33RD COURT
Gainesville, FL 32607
(352) 376-4694

lireland@clayton-john-
ston.com

Counsel of Record

SELDON J. CHILDERS
2135 40TH TERRACE,
Suite B
Gainesville, FL 32605
(352) 335-0400

Counsel for Movants-Ami-
cus

January 2022.

iv

QUESTIONS PRESENTED

1. Whether the Court should stay the emer-
gency temporary standard that the Occupational

Safety and Health Administration issued, which ex-
ceeded its statutory authority and violates the United

States Constitution.
2. Whether the Court should grant certiorari
before judgment so that it can review the ETS before
the cases become moot.

v

TABLE OF CONTENTS

Motion for Leave to File Amicus Curiae Brief ………. i
Questions Presented ………………………………………….. iv
Table of Contents ……………………………………………….. v
Table of Authorities…………………………………………….vi
Interest of Amicus Curiae ……………………………………. 1
Introduction & Summary of Argument………………… 3
Argument…………………………………………………………… 4
I. Omicron Is Now the Dominant Variant ………. 4
II. Omicron Does Not Present a Grave
Danger……………………………………………………… 7
III.Vaccines Are Ineffective At Preventing
Omicron Infections …………………………………..18
Conclusion ……………………………………………………….. 26

vi

TABLE OF AUTHORITIES

Other Authorities
Aziz Sheikh, Steven Kerr, Mark Woolhouse,
Jim McMenamin, and Chris Robertson,
Severity of Omicron variant of concern and
vaccine effectiveness against symptomatic
disease: national cohort with nested test
negative design study in Scotland, The
University of Ediburgh (Dec. 22, 2021). …………….. 7
CBC News, Ontario pushes back school
reopening to Jan. 5, restricts PCR testing to
high-risk individuals (Dec. 30, 2021)………………..25

CDC, Case Surveillance/United States COVID-
19 Cases and Deaths by State,

https://data.cdc.gov/Case-
Surveillance/United-States-COVID-19-Cases-
and-Deaths-by-State-o/9mfq-cb36 (visited

Jan. 4, 2022)…………………………………………………..25
CDC, COVID Data Tracker,

https://covid.cdc.gov/covid-data-
tracker/#variant-proportions (visited Jan. 4,

2022)………………………………………………………………. 4
CDC, Estimated flu-related illnesses, medical
visits, hospitalizations, and deaths in the
United States – 2017-2018 flu season (Sept.
30, 2021)……………………………………………………….. 18

CDC, https://data.cdc.gov/resource/9bhg-
hcku.csv?sex=All Sexes …………………………………..14

vii

Christian Holm Hansen PhD, Astrid Blicher
Schelde PhD, Ida Rask Moustsen-Helm PhD,
Hanne-Dorthe Emborg PhD, Tyra Grove
Krause PhD, Kåre Mølbak DMSc, Palle
Valentiner Branth, Vaccine effectiveness
against SARS-CoV-2 infection with the

Omicron or Delta variants following a two-
dose or booster BNT162b2 or mRNA-1273

vaccination series: a Danish cohort study,
medRxiv (Dec. 22, 2021)………………………………….20
Dep’t: Health Republic of South Africa, Media
Release: Cabinet Approves Changes to
COVID-19 Regulations (Dec.30, 2021)………………11
Genomic Epidemiology of novel coronavirus –
Global subsampling,
https://nextstrain.org/ncov/gisaid/global?f_cou
ntry=South%20Africa
https://nextstrain.org/ncov/gisaid/global?f_cou
ntry=South%20Africa (visited Jan. 4, 2022) ………. 6
Harry Moultrie (@hivepi), Twitter (Dec. 27,
2021, 3:29 AM),
https://twitter.com/hivepi/status/14753834294
03484163. ………………………………………………………10
LKS Faculty of Medicine, The University of

Hong Kong, HKUMed finds Omicron SARS-
CoV-2 can infect faster and better than Delta

in human bronchus but with less severe
infection in the lung (Dec. 15, 2021)…………………… 9

viii

Moderna, Moderna Announces Preliminary
Booster Data and Updates Strategy to
Address Omicron Variant (Dec. 20, 2021) …………19
National Institute for Communicable Diseases,
Frequently Asked Questions for the B.1.1.529
mutated SARS-COV-2 lineage in South
Africa,

https://www.nicd.ac.za/frequently-asked-
questions-for-the-b-1-1-529-mutated-sars-cov-
2-lineage-in-south-africa/ (visited Jan.4,

2022)………………………………………………………………. 6
Nicole A. Doria-Rose, Xiaoying Shen, Stephen
D. Schmidt, Sijy O’Dell, , Charlene McDanal,

Wenhong Feng, Jin Tong, Booster of mRNA-
1273 vaccine reduces SARS-CoV-2 Omicron

Escape from Neutralizing Antibodies,
medRxiv (Dec. 15, 2021)………………………………….19
Nicole Wolter, Waasila Jassat , Sibongile
Walaza1, Richard Welch, Harry Moultrie,
Michelle Groome, Daniel Gyamfi
Amoako,Early assessment of the clinical
severity of the SARS-CoV-2 Omicron variant
in South Africa, medRxiv (Dec. 21, 2021)…………… 7
Oliver Barnes, John Burn-Murdoch, and
Richard Milne, Omicron cases less likely to
require hospital treatment, studies show, Ars
Technica (Dec. 22, 2021)…………………………………… 8

ix

Ontario, All Ontario: Case numbers and

spread, https://covid-19.ontario.ca/data/case-
numbers-and-spread (visited Jan. 5, 2022) ……….24

Our World in Data, Coronavirus (COVID-19)
Vaccinations,
https://ourworldindata.org/covid-vaccinations
(visited Jan. 4, 2022) ………………………………………22
Our World in Data, Moving-average case
fatality rate of COVID-19,
https://ourworldindata.org/explorers/coronavi

rus-data-
explorer?zoomToSelection=true&time=2020-

03-
01..latest&facet=none&pickerSort=asc&picke
rMetric=location&Metric=Case+fatality+rate
&Interval=7-
day+rolling+average&Relative+to+Populatio
n=true&Color+by+test+positivity=false&coun
try=~ZAF (visited Jan. 4, 2022) ……………………….17
Pfizer, Pfizer and BioNTech provide update on
monicron variant (Dec. 8, 2021)……………………….18
Pieter Streicher (@pieterstreicher), Twitter
(Dec. 27, 2021, 12:56 PM),

5525908475830278. ………………………………………..16
Robert Koch Institut, Wochentlicher Lagebericht
des RKI zur Coronavirus-Krankheit-2019
(COVID-19) (Dec. 30, 2021)……………………………..22

x

Shabir A. Madhi, Gaurav Kwatra, Jonathan E.
Myers, Waasila Jassat, Nisha Dhar,
Christian K. Mukendi, Amit J. Nana, South
African Population Immunity and Severe
Covid-19 with Omicron variant, medRxiv
(Dec. 21, 2021)………………………………………………..11
Sivan Gazit, Roei Shlezinger, Galit Perez, Roni
Lotan, Asaf Peretz, Amir Ben-Tov, Dani
Cohen, Khitam Muhsen, Gabriel Chodick, Tal
Patalon (2021) Comparing SARS-CoV-2
natural immunity to vaccine-induced
immunity: reinfections versus breakthrough
infections, medRxiv (Aug. 25, 2021)………………….22
The White House, Press Briefing by White
House COVID-19 Response Team and Public
Health Officials (Dec. 29, 2021), ……………………….. 9
UK Health Security Agency, SARS-CoV-2
variants of conern and variants under
investigation in England (Dec. 23, 2021)…………..22

INTEREST OF AMICUS CURIAE1
The American Commitment Foundation is a
501(c)(3) charitable foundation organized to educate

the general public about concepts that advance eco-
nomic freedom and constitutionally limited govern-
ment, led by its president Phil Kerpen. The Founda-
tion was advised in the preparation of this brief by ep-
idemiologists Jay Bhattacharya of Stanford Univer-
sity and Andrew Bostom of Brown University.

Jay Bhattacharya is a Professor of Health Policy at

Stanford University School of Medicine, a research as-
sociate at the National Bureau of Economic Research,

and the Director of Stanford’s Center for Demography
and Economics of Health and Aging. Dr.
Bhattacharya holds an M.D. and Ph.D. from Stanford
University. He has published 155 scholarly articles in

peer-reviewed journals in the fields of medicine, eco-
nomics, health policy, epidemiology, statistics, law,

and public health, among others. His research has
been cited in the peer-reviewed scientific literature
more than 12,500 times.

Dr. Bhattacharya has testified as an expert in nu-
merous lawsuits related to the Covid-19 pandemic

generally and vaccine mandates in particular, and has
devoted substantial time in research and writing on
the subject.

1 Amicus have moved for leave to file this brief. No party’s
counsel authored the brief in whole or in part, and no party or
party’s counsel, nor anyone other than amicus or their counsel,

contributed money intended to fund its preparation or submis-
sion.

2

Andrew Bostom is currently affiliated with the

Brown University Center For Primary Care and Pre-
vention, and was an Associate Professor of Medicine

and Family Medicine at The Warren Alpert Medical
School of Brown University from 1997 until June,

2021. A clinical trialist and epidemiologist, Dr. Bos-
tom designed and completed the largest randomized,

controlled trial ever conducted in chronic kidney
transplant recipients.

Dr. Bostom has 114 scholarly, peer-reviewed pub-
lications focused on epidemiology and clinical trials.

He has testified as an expert witness in lawsuits per-
taining to the Covid-19 pandemic—specifically on vac-
cine and mask mandates—while researching and

writing extensively on those subjects.

3

INTRODUCTION &
SUMMARY OF ARGUMENT
Substantial new factual developments related to
the Omicron variant, arising after the filing, briefing,

and arguing of the original cases, substantially under-
mine the government’s justification for the ETS

standard. The Omicron variant is — or will shortly be

— the dominant viral strain in the United States, ac-
counting for nearly all new SARS-CoV2 infections.

This significant change in circumstances negates
the factual basis for the OSHA order in two ways: it
dramatically reduces the risk of severe illness or
death, and it renders the existing vaccines ineffective
at reducing transmissions — thereby negating any
possible societal benefit from mandating their use.

The Court should completely disregard any fact evi-
dence developed prior to the rise of Omicron, including

the original vaccine trials, which showed efficacy
against the original “wild type” virus which is no
longer in circulation.
Presently available vaccines may confer a personal

benefit against severe disease from the Omicron vari-
ant, but do not confer any demonstrable societal ben-
efit, because they do not effectively reduce infections

or transmission. They simply cannot protect workers
from the spread of SARS-CoV-2 in the workplace.
With the Omicron variant now dominant, vaccine
mandates cannot possibly stop viral transmission.
Therefore, they amount to a personal health mandate,
akin to a requirement to eat broccoli, exercise, or any

4

number of personal health measures that the Court

has previously rejected as beyond the scope of legiti-
mate federal power.

ARGUMENT

I. OMICRON IS NOW THE DOMINANT
VARIANT

The Omicron variant now accounts for the major-
ity of new SARS-COV2 infections in the United

States, and is expected to represent substantially all
new infections within weeks.
Below is the CDC official variant projection, called
“NOWCAST,” which shows Omicron represented
95.4% of new cases for the week ending January 1 —
and is still rising:2

2 CDC, COVID Data Tracker, https://covid.cdc.gov/covid-data-
tracker/#variant-proportions (visited Jan. 4, 2022).

5

This follows the trajectory in South Africa, where
the Omicron variant was discovered in the Gauteng

6

province on November 22, 2020.3 In South Africa,
Omicron rose to 91% dominance by December 21.4

Given the Omicron trajectory in the United States
and the unprecedented steep rise in cases nationally,
driven by Omicron, it is likely that by the time the
Court decides whether to grant a stay, Omicron will

represent substantially all of the SARS-CoV2 infec-
tions in the United States. That fact renders nearly

all of the fact evidence in the record obsolete.

3 National Institute for Communicable Diseases, Frequently
asked questions for the B.1.1.529 mutated SARS-COV-2 lineage

in South Africa, https://www.nicd.ac.za/frequently-asked-ques-
tions-for-the-b-1-1-529-mutated-sars-cov-2-lineage-in-south-af-
rica/ (visited Jan.4, 2022).

4 https://nextstrain.org/ncov/gisaid/global?f_coun-
try=South%20Africa

7

II. OMICRON DOES NOT PRESENT A
GRAVE DANGER

A recent analysis from the South African govern-
ment’s National Institute for Communicable Diseases

provides some reason for optimism: S-Gene Target
Failure (presumptive Omicron) cases are 80% less
likely to be hospitalized.5

The latest data from Scotland also strongly sug-
gests the same optimistic conclusion: “early national

data suggest that Omicron is associated with a two-
thirds reduction in the risk of COVID-19 hospitalisa-
tion when compared to Delta.”6

5 https://www.medrxiv.org/con-
tent/10.1101/2021.12.21.21268116v1.full.pdf

6 https://www.research.ed.ac.uk/en/publications/severity-of-omi-
cron-variant-of-concern-and-vaccine-effectiveness-

8

Denmark’s data shows Omicron cases were three
times less likely to end up with hospital admissions
than the previous dominant variant, Delta.7

The United States has not published any compara-
ble data. But, NIAID Director Dr. Anthony Fauci

noted the global evidence of reduced severity at a De-
cember 29, 2021 White House briefing and indicated

unpublished U.S. data show the same trend:

In the United States, we are getting accumula-
tion of data. The spike in cases is out of propor-
tion to the increase in hospitalization. So, if one

looks at 14-day averages, the data, as of last
night, indicate a plus 126 percent increase in

cases [but only] an 11 percent increase in hos-
pitalizations. Now, we must remember that

hospitalizations and deaths are lagging indica-
tors. However, the pattern and disparity be-
tween cases and hospitalization strongly sug-
gest that there will be a lower hospitalization-
7 https://arstechnica.com/science/2021/12/omicron-cases-less-
likely-to-require-hospital-treatment-studies-show/

9

to-case ratio when the situation becomes more
clear.8
Hong Kong University researchers pointed to the
likely reason, or mechanism, for Omicron’s increased
infectiousness but reduced virulence: it replicates far
more efficiently in the bronchus and upper respiratory
tract than Delta, but less efficiently in the lungs:9

But the most compelling evidence of Omicron end-
ing any grave danger from SARS-CoV2 comes from

8 https://www.whitehouse.gov/briefing-room/press-brief-
ings/2021/12/29/press-briefing-by-white-house-covid-19-re-
sponse-team-and-public-health-officials-76/

9 http://www.med.hku.hk/en/news/press/20211215-omicron-
sars-cov-2-infection

10

South Africa, particularly the Gauteng province (pop-
ulation 18 million) where the first recognized Omicron

wave occurred. According to Dr. Harry Moultrie of the
South African government’s National Institute for
Communicable Diseases, Gauteng cases peaked on
December 9 at 97 percent of the delta wave. Even
more reassuringly, deaths were only 13 percent of the
delta peak:10

A recently published working paper by a South Af-
rican team of scientists who were conducting a sero-
10 https://twitter.com/hivepi/status/1475383429403484163

11

epidemiological survey in the Gautang Province con-
firms the conclusion that Omicron infection is sub-
stantially less likely to require hospitalization or in-
duce mortality than infection with other strains.

While cases may rise sharply as a wave of Omicron
sweeps through a region, hospitalizations and deaths
do not follow. The authors conclude:11
We demonstrate widespread underlying

SARS-CoV-2 seropositivity in Gauteng Prov-
ince prior to the current Omicron-dominant

wave, with epidemiological data showing an
uncoupling of hospitalization and death rates
from infection rate during Omicron circulation.
Based on their Omicron experience, some South

African scientists have effectively declared the pan-
demic over, stating:12

All indicators suggest the country may have
passed the peak of the fourth wave at a national
level… While the Omicron variant is highly
transmissible, there has been lower rates of
hospitalisation than in previous waves. This
means that the country has a spare capacity for

11 https://www.medrxiv.org/con-
tent/10.1101/2021.12.20.21268096v1

12 https://sacoronavirus.co.za/2021/12/30/media-release-cabinet-
approves-changes-to-covid-19-regulations/

12

admission of patients even for routine health
services.
In other words, the first country to experience an
Omicron wave has unambiguously concluded that the
dominant variant presents no grave danger.
Early U.S. data is available in a preprint from a
team at Case Western Reserve University, which used
propensity matched-cohort analysis to find markedly

reduced disease severity during the period from De-
cember 14 to December 24, 2021. On an age and risk-
matched basis, they found ER visits were 70% lower

than earlier cohorts, hospitalizations were 56% lower,
ICU admissions were 67% lower, and ventilation were
84% lower.

13

As good as they appear, these reductions substan-
tially understate the reduction of risk represented by

Omicron, because this cohort included a non-negligi-
ble number of Delta infections. According to the au-
thors:

The estimated prevalence of the Omicron vari-
ant during 12/15-12/24 was only 22.5-58.6%,

suggesting that the outcomes for the Omicron
variant may be found to be even milder than
what we report here as the prevalence of the
Omicron variant increases.
Adding to the lack of any grave danger, there is

also strong early evidence that Omicron infection of-
fers robust protection against the Delta variant. This

means that even if the Delta variant still presented a
grave danger, it would be counterproductive to stop or
slow the spreading of the presently dominant Omicron
variant.
Research at the Africa health Research Institute
found:
Importantly, there was an enhancement of
Delta virus neutralization, which increased

4.4-fold. The increase in Delta variant neu-
tralization in individuals infected with Omi-
cron may result in decreased ability of Delta

to re-infect those individuals. Along with
emerging data indicating that Omicron, at
this time in the pandemic, is less pathogenic

14

than Delta, such an outcome may have posi-
tive implications in terms of decreasing the

Covid-19 burden of severe disease.
This substantial reduction of severe disease risk
must be applied to a contextualized understanding of
the already low-risk to working-age individuals.
Since the start of the pandemic, there have been
206,156 COVID-associated deaths among the working
age 18 to 64 population – overwhelmingly in those

above age 50 with pre-existing health conditions – ac-
cording to the preliminary death count at the CDC’s

National Center for Health Statistics:13

Given substantial improvements in treatments, in-
cluding therapeutics that can reduce the risk of hospi-
talization of death by more than 50 percent, we would

expect that even if the virus had not attenuated
deaths in this age group, and even in the absence of
vaccination, deaths would be 50,000 or less per year
going forward.

13 https://data.cdc.gov/resource/9bhg-hcku.csv?sex=All
Sexes

15

Case fatality rates might be an even better way to
conceptualize the risk than other common measures.
As Dr. Jay Bhattacharya of Stanford notes:
It is helpful to provide some context for how
large the mortality risk is posed by COVID
infection relative to the risk posed by other

infectious diseases. Since seroprevalence-
based mortality estimates are not readily

available for every disease, in the figure im-
mediately below, I plot case fatality rates,

defined as the number of deaths due to the
disease divided by the number of identified
or diagnosed cases of that disease. The case
fatality rate for SARS-CoV-2 is ~2% (though

that number has decreased with the availa-
bility of vaccines and effective treatments).

By contrast, the case fatality rate for SARS
is over five times higher than that, and for
MERS, it is 16 times higher than that.

16

But the case fatality rate appears to be falling even

more sharply than that. In South Africa, the case fa-
tality rate plunged dramatically when Omicron be-
came dominant. Pieter Streicher of the University of

Johannesburg projects that for Gauteng Province: “C-
19 deaths are expected to total 640 for this wave, 25x

lower compared to Delta (15,400).”14
The graph below tracks a 7-day moving average of

the case fatality rate of COVID infection from Septem-
ber 1, 2020 to January 1, 2022 in South Africa with

14 https://twitter.com/pieterstreicher/sta-
tus/1475525908475830278

17

data from a well-known COVID data provider, Our
World in Data.15 It confirms the collapse in the case

fatality rate of COVID in South Africa as Omicron be-
came the dominant strain.

15 Our World in Data, Moving-average case fatality rate of

COVID-19, https://ourworldindata.org/explorers/coronavirus-
data-explorer?zoomToSelection=true&time=2020-03-01..lat-
est&facet=none&pickerSort=asc&pickerMetric=location&Met-
ric=Case+fatality+rate&Interval=7-day+rolling+average&Rela-
tive+to+Population=true&Color+by+test+positiv-
ity=false&country=~ZAF (visited Jan. 4, 2022)

18

With Omicron’s observed decline in severity, ex-
pected working-age deaths fall into a range compara-
ble to — or even lower than — the CDC’s modeled

8,000 influenza deaths in 2017-18.16 Quite simply,

the Omicron variant is now a normal respiratory vi-
rus, not an unusual, extraordinary, or grave danger.

There is no evidence in the record specific to Omicron
to support a grave danger finding.
III. VACCINES ARE INEFFECTIVE AT
PREVENTING OMICRON INFECTIONS
Pfizer and BioNTech are the manufacturers of the
current leading vaccine. They recently admitted that
the existing vaccine does not provide robust protection
against Omicron, saying:
Sera from individuals who received two
doses of the current COVID-19 vaccine did

exhibit, on average, more than a 25-fold re-
duction in neutralization titers against the

Omicron variant compared to wild-type, in-
dicating that two doses of BNT162b2 may

not be sufficient to protect against infection
with the Omicron variant.17

16 https://www.cdc.gov/flu/about/burden/2017-2018.htm

17 https://www.pfizer.com/news/press-release/press-release-de-
tail/pfizer-and-biontech-provide-update-omicron-variant

19

Moderna, the second-leading manufacturer, simi-
larly admitted that its vaccine does not provide ac-
ceptable efficacy against Omicron, stating:

All groups had low neutralizing antibody lev-
els in the Omicron PsVNT assay prior to

boosting.18

Similarly, NIH-funded researchers at Duke uni-
versity found in vitro that: “neutralizing titers to Omi-
cron are 49-84 times lower than neutralization titers

to D614G [wild-type SARS-CoV2] after 2 doses of

mRNA-1273 [Moderna], which could lead to an in-
creased risk of symptomatic breakthrough infec-
tions.”19

Real-world evidence from at least four countries

with significant experience with Omicron — Den-
mark, the United Kingdom, Germany, and Canada,

all of which provide more detailed and transparent
data than has been made available in the United

States — evidences that these vaccines have substan-
tially zero efficacy at preventing Omicron transmis-
sion, undermining the central rationale for mandating

them in the workplace.

18 https://investors.modernatx.com/news/news-de-
tails/2021/Moderna-Announces-Preliminary-Booster-Data-and-
Updates-Strategy-to-Address-Omicron-Variant/default.aspx

19 https://www.medrxiv.org/con-
tent/10.1101/2021.12.15.21267805v1.full-text

20

The Statens Serum Institut in Copenhagen, Den-
mark analyzed Danish data and found vaccine effi-
cacy turned negative after 91 days following the sec-
ond dose was administered. In other words, vac-
cinated Danes were even more likely than unvac-
cinated Danes to be infected with Omicron after 3

months:20

20 https://www.medrxiv.org/con-
tent/10.1101/2021.12.20.21267966v2.full.pdf

21

This may be because unvaccinated, COVID-
recovered patients have better protection versus Omi-
cron than vaccinated patients who never previously

had COVID.21

21 Sivan Gazit, Roei Shlezinger, Galit Perez, Roni Lotan, Asaf
Peretz, Amir Ben-Tov, Dani Cohen, Khitam Muhsen, Gabriel
Chodick, Tal Patalon (2021) Comparing SARS-CoV-2 natural
immunity to vaccine-induced immunity: reinfections versus

22

In Germany, the most recent detailed report from
the Robert Koch Institute (the German equivalent of
the CDC) found that 78.6 percent (4,020 of 5,117) of

sequenced Omicron cases were in vaccinated Ger-
mans,22 despite a population vaccination rate of just

70 percent.23
In the United Kingdom, the UK Health Security
Agency calculated preliminary vaccine effectiveness
estimates remarkably like the Danish findings, with
near-zero vaccine efficacy for both Pfizer-BioNTech
and Moderna vaccines after 20 weeks following the
second dose:24

breakthrough infections, medRxiv (Aug. 25, 2021)
https://doi.org/10.1101/2021.08.24.21262415
22
https://www.rki.de/DE/Content/InfAZ/N/Neuartiges_Coronaviru
s/Situationsberichte/Wochenbericht/Wochenbericht_2021-12-
30.pdf?__blob=publicationFile
23 https://ourworldindata.org/covid-vaccinations

24 https://assets.publishing.service.gov.uk/government/up-
loads/system/uploads/attachment_data/file/1043807/technical-
briefing-33.pdf

23

Although the UK Health Security Agency clarifies
“[t]hese results should be interpreted with caution
due to the low counts and the possible biases related
to the populations with highest exposure to Omicron
(including travellers and their close contacts) which

cannot fully be accounted for,” these results are con-
sistent with the epidemiological patterns we are see-
ing in the United States and globally.

In Ontario, Canada, the case rate per 100,000 fully
vaccinated Ontarians has risen sharply above the case

24

rate per 100,000 unvaccinated Ontarians, again sug-
gesting negative vaccine efficacy:25

A test-negative control analysis of Ontario test
data by researchers from Public Health Ontario and

leading Canadian universities found: “observed nega-
tive VE against Omicron among those who had re-
ceived 2 doses compared to unvaccinated individuals”

(emphasis added).

As the following table shows, the Ontario research-
ers found that after day 60 following the second dose,

vaccine effectiveness was negative, meaning a vac-
cinated person was more likely to be infected than an

unvaccinated person:

25 https://covid-19.ontario.ca/data/case-numbers-and-spread

25

Contemporaneous with this development, Ontario
announced a major shift in strategy away from mass

testing. On December 20, 2021, Ontario’s health of-
ficer Kieran Moore said:

We have to pivot, we know there’s ongoing
community activity, we know we’ll have
transmission risk, that data has to focus to

screen those who need treatment and to pro-
tect those in high-risk settings.26

In the United States, studies and data from last
summer showing higher viral transmission in less
vaccinated southern states is now completely obsolete.

As the following CDC table demonstrates, in the Omi-
cron wave there is no observable reduction in case

rates based on vaccination rates:27

26 https://www.cbc.ca/news/canada/toronto/covid-19-ontario-dec-
30-2021-testing-guidelines-cases-1.6300425

27 https://data.cdc.gov/Case-Surveillance/United-States-COVID-
19-Cases-and-Deaths-by-State-o/9mfq-cb36

https://covid.cdc.gov/covid-data-tracker/COVIDData/getA-
jaxData?id=vaccination_data

26

CONCLUSION

The situation is, as they say, highly fluid. Substan-
tial new factual developments related to the Omicron

variant, which arose subsequent to the filing, briefing,

and arguing of the original cases, substantially under-
mine any possible justification for the government’s

ETS.
Even if SARS-CoV-2 did present a grave danger
justifying the ETS at the time it was published — a
highly controversial assertion in its own right — at
this time, the Omicron virus that presently dominates

the field does not even arguably present a grave dan-
ger. Nor could its transmission be substantially re-
duced through mandatory vaccination even if it did

present a grave danger. Therefore, the OSHA order

27

should be stayed, and the Court should grant certio-
rari before judgment.

Respectfully submitted,

LEONARD E. IRELAND, JR.
18 N.W. 33RD COURT
Gainesville, FL 32607
(352) 376-4694

lireland@clayton-john-
ston.com

Counsel of Record

SELDON J. CHILDERS
2135-B 40TH TERRACE,
Gainesville, FL 32605
(352) 335-0400

jchilders@smart-
bizlaw.com

Counsel for Movant-Ami-
cus

January 2022