6th Circuit Ruling Restoring Employer Vaccine Mandate Falsely Claims ‘Options Available to Combat COVID-19 Changed Significantly’ When ‘FDA Granted Approval to One Vaccine on August 23, 2021’


The majority opinion released on Friday by the 6th Circuit Court of Appeals, which restored the Biden administration’s Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) requiring employers with more than 100 employees to mandate that all employees take a COVID-19 vaccine, falsely asserts that Pfizer’s Food and Drug Administration (FDA) fully approved vaccine is currently available and in use among the general public.

“At the same time, the options available to combat COVID-19 changed significantly: the FDA granted approval to one vaccine on August 23, 2021, and testing became more readily available,” the majority opinion asserts on page 24 of the ruling.

The majority opinion was written by Obama-appointed Judge Jane Branstretter Stranch of the United States Court of Appeals for the Sixth Circuit (pictured above).

As The Star News Network reported this week in The Ohio Star, The Tennessee Star, and The Georgia Star News, the Pfizer COVID-19 vaccine with the brand name Comirnaty that was fully approved by the FDA on August 23, is not being shipped or administered in those three states.

“The Pfizer-BioNTech COVID-19 Vaccine (EUA labeled product) is currently being shipped; however, please be advised that the COMIRNATY and the Pfizer-BioNTech COVID-19 Vaccine have the same formulation and can be used interchangeably. They are made using the same processes, and there are no differences between them in safety or effectiveness,” the Pfizer told The Star Monday.

Prominent experts such as Dr. Robert Malone have also stated that Comirnaty is not shipped or available anywhere in the United States.

“The majority opinion describes the emergency rule at issue here as permitting employers, ‘to determine for themselves how best to minimize the risk of contracting COVID-19 in their workplaces,” Judge Joan Larsen wrote in her dissent. “With respect, that was the state of federal law before the rule, not after.”

“OSHA’s mandate applies, in undifferentiated fashion, to a vast swath of Americans: 84 million workers, 26 million unvaccinated, with varying levels of exposure and risk,” she wrote. “The burden is on ‘the agency to articulate rationally why the rule should apply to a large and diverse class’ … The agency does not do so.”

Since Pfizer confirmed to The Star that it is still shipping the EUA version of the vaccine, The Star has been stonewalled by entities that have imposed vaccine mandates based on the false implication from the FDA and others that the company’s FDA approved product is widely available.

One of those entities is the U.S. Army, which purchased 500 million doses of the Pfizer vaccine before Comirnaty was even fully approved, but still mandated vaccines for service members on August 24, the day after Corminaty’s approval.

“Your premise is false,” Army spokesman Bruce Anderson told The Star.

“Per FDA guidance, these two vaccines are ‘interchangeable’ and DoD health care providers should ‘use doses distributed under the EUA to administer the vaccination series as if the doses were the licensed vaccine,'” he said. “Consistent with FDA guidance, DoD health care providers will use both the Pfizer-BioNTech COVID-19 vaccine and the Comirnaty COVID-19 vaccine interchangeably for the purpose of vaccinating service members in accordance with Secretary of Defense Memorandum, ‘Mandatory Coronavirus Disease 2019 Vaccination of Department of Defense Service Members,’ August 24, 2021.'”

Strictly speaking, the vaccines are not “interchangeable.” The FDA also notes that the two products are “legally distinct.” They require different Biologics License Applications (BLAs), branding and disclosures.

Anderson did not respond to a request asking whether the Army has received any Comirnaty.

One lawsuit against the University of Cincinnati, which is barred by Ohio law from mandating non-FDA approved vaccines but is mandating them anyway, will challenge that mandate on the grounds of legal distinction between Comirnaty and the Pfizer-BioNTech EUA authorized version of the vaccine.

The Sixth Circuit Court of Appeals sits in Cincinnati, Ohio.

The case is Massachusetts Building Trades Council v. United States Department of Labor, Occupational Safety and Health Administration et al., Nos. 21-7000 et. al, in the 6th Circuit Court of Appeals of the United States.

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Pete D’Abrosca is a reporter at The Star News Network. Follow Pete on Twitter. Email tips to [email protected].
Photo “Judge Jane Branstretter Stranch” by the 6th Circuit Court of Appeals and photo “Potter Stewart U.S. Post Office and Courthouse” is by Carol M. Highsmith.




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5 Thoughts to “6th Circuit Ruling Restoring Employer Vaccine Mandate Falsely Claims ‘Options Available to Combat COVID-19 Changed Significantly’ When ‘FDA Granted Approval to One Vaccine on August 23, 2021’”

  1. Jay Werner

    If they are apparently interchangeable why didn’t the FDA give full approval to the Pfizer-BioNTech version of the vaccine? Crimes against humanity

  2. Joseph

    OOPS 🙊

    “In order for OSHA to assert its statutory authority, an employer/employee relationship must generally exist. Without that nexus, OSHA is without authority to conduct enforcement activity”.



  3. TSW

    This is a 57 page ruling. The primary dissenting judge waxed on like a novel about how COVID has affected the nation for the first 10 pages. Those can be ripped out. The ruling incorrectly states that OSHA created the vaccine mandated under its authority when in fact the WH under POTUS Biden ordered OSHA to carry out its illegal EO. The ruling completely ignores central issues. This ruling is long on opinion and short on definitive legal proof that OSHA has any authority to conduct a vaccine mandate or issue one when in fact they never have. Workplace safety can also be claimed for any transmissible disease yet OSHA has never had any such history of dealing with any disease in the workplace. Clearly this ruling was written long before it was actually awarded to the 3 judge panel in anticipation as one judge in the 6th circuit inferred they have already been working on it when the vote was issued for the tie between a full court hearing or a 3 judge panel. If judges continue to issue ruling based on opinion versus the law as written then there’s really no reason to waste all this money on the federal court system, just have anyone with an opinion be promoted to the court and throw out the law. SCOTUS will decide on the true merits of a POTUS issuing a mandate through an EO that surreptitiously threatens the livelihoods of all workers. It will not stand.

  4. James Nixon

    it’s an unconstitutional ruling and will be reversed. Joe Biden is an unconstitutionally elected official and must be removed from office by any means necessary.,

  5. BlackR1


    Even (p)Resident Biden admitted neither he nor the Executive Branch have the Constitutional authority to impose a “mandate” on PRIVATE businesses.

    Either we live under a Constitutional Republic as our Founding Fathers intended, or we live under an Authoritarian Regime, when that Authoritarian can ignore both the will of the people and the Constitution that he swore an oath to protect and make laws and edicts from his office.