The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Soon, the Occupational Safety and Health Administration will issue a rule pursuant to an Emergency Temporary Standard (ETS). Challenging this ETS is far more complicated than I initially realized.
First, litigation would bypass the federal district courts. Rather, pursuant to 29 U.S.C. 655(f), a pre-enforcement challenge would begin in a court of appeals.
Any person who may be adversely affected by a standard issued under this section may at any time prior to the sixtieth day after such standard is promulgated file a petition challenging the validity of such standard with the United States court of appeals for the circuit wherein such person resides or has his principal place of business, for a judicial review of such standard. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Secretary. The filing of such petition shall not, unless otherwise ordered by the court, operate as a stay of the standard. The determinations of the Secretary shall be conclusive if supported by substantial evidence in the record considered as a whole.
But, as you might suspect, many petitions will be filed in several courts of appeals. Yesterday, I wrote that this torrent of litigation could yield a circuit split. I was wrong.
Second, 28 U.S.C. 2112(a) provides that multiple challenges to the ETS standard will be consolidated in a single court of appeals. I am grateful to Sean Marotta, who wrote a helpful and concise guide to understand the Multicircuit Petition Statute. But which court of appeals? The answer is complicated.
If an agency, board, commission, or officer receives two or more petitions for review of an order in accordance with the first sentence of paragraph (1) of this subsection, the agency, board, commission, or officer shall, promptly after the expiration of the ten-day period specified in that sentence, so notify the judicial panel on multidistrict litigation authorized by section 1407 of this title, in such form as that panel shall prescribe. The judicial panel on multidistrict litigation shall, by means of random selection, designate one court of appeals, from among the courts of appeals in which petitions for review have been filed and received within the ten-day period specified in the first sentence of paragraph (1), in which the record is to be filed, and shall issue an order consolidating the petitions for review in that court of appeals.
I was only half joking when I wrote John Roberts would draw a number from a hat. According to Rule 25.5(a) of JPML, there is a number drawn from a drum by the clerk:
Upon filing a notice of multicircuit petitions for review, the Clerk of the Panel shall randomly select a circuit court of appeals from a drum containing an entry for each circuit wherein a constituent petition for review is pending. Multiple petitions for review pending in a single circuit shall be allotted only a single entry in the drum. A designated deputy other than the random selector shall witness the random selection.
Fourth, what is the JPML, you might ask? A group of seven judges, selected by the Chief Justice, that has the authority to determine how to consolidate civil actions.
Here are the seven current members:
- Karen K. Caldwell, Chair, Eastern District of Kentucky
- Catherine D. Perry, Eastern District of Missouri
- Nathaniel M. Gorton, District of Massachusetts
- Matthew F. Kennelly, Northern District of Illinois
- David C. Norton, District of South Carolina
- Roger T. Benitez, Southern District of California
- Dale A. Kimball, District of Utah
For those who keep track of such things, there are two H.W. Bush nominees, three Clinton nominees, and two W. Bush nominees. The only member of this panel I am familiar with is Judge Benitez, who has decided several prominent Second Amendment cases that were invariably reversed by the Ninth Circuit.
Fifth, conservative litigants cannot game the system by simply filing petitions in conservative circuits. I am reliably informed that progressive groups routinely file petitions in progressive circuits to balance out the lottery. What would unions, for example, challenge? That the ETS did not go far enough, and the mandate should be even stricter. The specifics are not important. Rather, flooding petitions in progressive circuits will tilt the scales in favor of the administration. Do the math. Conservative will file in the 5th, 6th, 7th, 8th, and 11th Circuits. Progressives will file in the 1st, 2nd, 3rd, 4th, 9th, 10th, and (especially) D.C. Circuits. The balance is 7-5. If randomly chosen, the odds are ever in the President's favor. Remember, forum shopping is rational.
Sixth, if the conservatives prevail, there will still be motion practice to transfer the case. Sean explains:
The panel's selection of a circuit is just a starting point. The statute says the selected circuit can transfer the cases "[f]or the convenience of parties in the interest of justice." 28 U.S.C. § 2112(a)(5). Put to practice, the circuit courts weigh a mix of factors, including "the location of counsel, location of the parties, whether the impact of the litigation is local to one region, whether one circuit is more familiar with the same parties and issues or related issues than other courts, the caseloads of the respective courts, and whether there is but one truly aggrieved party." Liquor Salesmen's Union Local 2 of N.Y. v. NLRB, 662 F.2d 1200, 1205 (D.C. Cir. 1981). But winning the lottery puts a thumb on the scale. Courts typically "respect" a petitioner's "choice to file a petition for review" in a particular circuit, creating something of a presumption against transfer. Id. at 1204. So despite the possibility of transfer, getting the lottery procedure right in the first instance is essential.
A lot turns on how the random lottery works. I am also reliably informed that the random process has a preference for the D.C. Circuit. If anyone has contrary information, please email me.
Seventh, prior to the random lottery, a single circuit court can stay the rule. And that stay would remain in effect for some time. Consider 28 U.S.C. 2112(a)(4):
Any court of appeals in which proceedings with respect to an order of an agency, board, commission, or officer have been instituted may, to the extent authorized by law, stay the effective date of the order. Any such stay may thereafter be modified, revoked, or extended by a court of appeals designated pursuant to paragraph (3) with respect to that order or by any other court of appeals to which the proceedings are transferred.
Imagine that a suit is filed in the Fifth Circuit, and a panel stays the rule prior to the ten-day period. That stay would remain in effect while the JPML chooses a circuit. At that point, there would have to be briefing in the new circuit, which could then choose to vacate the stay. And, invariably, the Supreme Court can take shadow docket action. Given all of the parties that will be flooded into the transferee circuit, the stay could remain in effect for some time.
Eighth, if the cases are consolidated, Supreme Court review becomes far simpler. Presumably, the Court could issue a stay from the shadow docket, though I still think expedited hearing on the rocket docket would be for everyone's benefit.
None of these complicated rules will govern challenges to CMS regulations. The states can file these suits in their forum of choice.
My thoughts here are tentative, and I'm sure I made some errors. If you spot them, please email me.
Update: I've made several changes to this post, regarding how the random selection process is performed, and whether a circuit court can stay the rule before the random lottery occurs.