The Volokh Conspiracy

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Challenges to OSHA Vaccine-or-Test Standard to Be Heard by Sixth Circuit

As a result of the multi-district litigation lottery process, all of the challenges will be heard in a single circuit.


The ping-pong ball has been drawn, and the U.S. Court of Appeals for the Sixth Circuit is the winner. All of the various state, industry, and union challenges to the Occupational Safety and Health Administration's Emergency Temporary Standard (ETS) mandating large employers to require vaccination or regular testing and masking of employees will be consolidated into a single proceeding in the Sixth Circuit. (I discussed the OSHA standard here and here.)

Given that challenges had been filed in all twelve regional circuits, and there are over three-dozen parties, this will be one bear of a case. Red states and employer groups initially filed in the more conservative circuits, including the Fifth Circuit which issued a stay on Friday, arguing that OSHA's action was unlawful. Blue states and progressive groups responded by filing challenges in more liberal circuits, alleging that OSHA's ETS is too lax. Each side was trying to increase the chances that the case would be consolidated on favorable turf by increasing the number of favorable circuits in the lottery draw. (For more on the lottery, see this post by Josh Blackman or Sean Marotta's twitter feed.)

The "winning" court, the Sixth Circuit, is generally considered to be a conservative court. The current split among active judges is 10-6, favoring nominees of Republican presidents. (An eleventh judge, Helene White, was appointed by a Republican president, but White was initially nominated by Bill Clinton, and subsequently renominated by George W. Bush at Senator Carl Levin's insistence as part of a deal with Senate Democrats.)  There are also twelve(!) senior judges who continue to hear cases (to varying degrees), but senior judges do not sit en banc (unless they participated in the initial three–judge panel).

A list of the Sixth Circuit's judges can be found here. The Sixth Circuit sits in Cincinnati and covers Ohio, Michigan, Tennessee and Kentucky.

As someone who follows the Sixth Circuit quite closely, I am definitely excited to see this case in my "home" circuit. The overall intellectual caliber of the judges on this circuit is quite strong, and I expect to see a thoughtful opinion.