6th Circuit to hear challenges to OSHA vaccine-or-test mandate
Which circuit court the cases would end up in was being closely watched, as some have reputations for being more partisan than others.
After being selected in a random multicircuit lottery Tuesday, the U.S. Court of Appeals for the Sixth Circuit will hear the consolidated challenges to the Occupational Safety and Health Administration’s emergency rule requiring many private-sector workers to either get the COVID-19 vaccine or be tested weekly.
Dozens of lawsuits are pending in federal courts seeking to block the emergency temporary standard, which the Biden administration has said is necessary to curb the spread of the novel coronavirus and protect workers. Republican-led states, businesses and unions who have filed challenges believe the rule is unconstitutional.
Under federal law, when multiple petitions for review of a single agency action are filed in at least two courts of appeals within 10 days, the petitions are consolidated and heard by one court chosen at random. The government said in court filings that there were 34 petitions for review across all of the circuit courts.
Each federal appeals court got a single entry in the drawing and the clerk of the Judicial Panel on Multidistrict Litigation randomly selected the Sixth Circuit. Which circuit court the cases would end up in was being closely watched, as some have reputations for being more partisan than others.
The Sixth Circuit leans conservative. It is made up of eight sitting judges appointed by Democratic presidents and 21 appointed by Republicans. Of its 16 active judges, 11 were appointed by Republican presidents and five by Democratic presidents.
The Sixth Circuit panel that hears the case will now have the ability to lift a Fifth Circuit stay of the agency’s rule issued earlier this month, or allow the stay to remain in effect. The three-judge panel has not yet been announced.
Fifth Circuit Judges Edith Jones, Stuart Kyle Duncan and Kurt Engelhardt unanimously granted an emergency temporary stay of the rule in BST Holdings v. OSHA, writing that the petitions gave “cause to believe there are grave statutory and constitutional issues with the mandate.”
Days later, the Department of Justice asked the Fifth Circuit not to immediately rule on a motion for a permanent injunction sought by states and businesses challenging the rule, saying the multicircuit lottery should occur first and the petitions consolidated for one court to hear.
The OSHA mandate requires private companies with 100 or more employees to have their employees get vaccinated by Jan. 4, or implement weekly testing and mask requirements. Businesses that don’t comply could face fines of nearly $14,000 per violation.
Employment law experts have said that the government faces high hurdles in fighting off the challenges against the rule, which is an “emergency standard rule” created without a period of public notice and comment.
While the Occupational Safety and Health Act of 1970 allows the Labor Department to bypass public comment procedures to create an emergency rule, many experts said OSHA failed to meet the statutory hurdle for issuing the ETS in past reviews of emergency rules.