The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Saturday, a Fifth Circuit panel entered a temporary stay of the OSHA Vaccine mandate. The panel also ordered the government to "respond to the petitioners' motion for a permanent injunction by 5:00 PM on Monday, November 8." Not a preliminary injunction. A permanent injunction.
DOJ filed its brief. And the government opposed the prospect of the court entering permanent relief.
This Court's November 6 Order directed the government to "respond to the petitioners' motion for a permanent injunction." Because the pending motions seek preliminary relief, the government understands that order to distinguish petitioners' requested relief from the interim, administrative stay entered by the Court. The government notes that one group of petitioners filed an opening merits brief seeking a permanent injunction but that this Court's November 8 letter confirms that the brief is "premature." It would, of course, be improper to fully adjudicate pending petitions before the multi-circuit lottery occurs or the administrative record is filed. See 28 U.S.C. § 2112(a)(3)("The agency . . . shall file the record in the court of appeals designated[by the Judicial Panel].");see also Camp v. Pitts, 411U.S. 138,142-143(1973) (per curiam) (judicial review is focused on "the administrative record"). The multi-circuit judicial review provision contemplates—at most—"stay[ing]"the Standard's"effective date"; that stay "may there after be modified, revoked, or extended"by the court hearing the 6 cases. Id. § 2112(a)(4). That language, the provision's structure as a whole, and principles of fairness and orderly presentation of arguments, all demonstrate that courts are not to resolve these challenges conclusively during the ten-day period prior to consolidation. Accordingly, the Court should not consider any request for permanent relief at this juncture.
Circa November 16, the judicial panel on multidistrict litigation will hold a lottery. At that point, all pending challenges to the OSHA rule will be consolidated to a single circuit court. To make things simple, I'll assume the case is directed to the D.C. Circuit.
Under the plain terms of the statute, the D.C. Circuit could stay the Fifth Circuit's temporary stay. 28 U.S.C. 2112(a)(4) provides:
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.
But it isn't clear to me that the D.C. Circuit could modify or revoke a permanent injunction. DOJ argues that it would "be improper to fully adjudicate" the case before the lottery. And doing so in the ten-day window would frustrate "principles of fairness and orderly presentation of arguments" that are contemplated by the policy. Still, what authority would permit one circuit court to modify the injunction of another circuit court? The All Writs Act? If the Fifth Circuit goes ahead and enters a permanent injunction, and the D.C. Circuit tries to stay that permanent injunction, then Texas would go to the Supreme Court.
Or, it is also possible that the Fifth Circuit wins the lottery, in which case the mandate would be stayed nationwide.
In either case, this matter may get to the Supreme Court by the end of November.