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.

NEXT: Divided Sixth Circuit Refuses to Stay FDA's Denial of Vaping Product Application

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  1. I'd like to request that when writing about Circuit Courts of Appeals you list where they are located. the district courts are relatively easy to find and I know some of them but not all.

    1. Ohio, Michigan, Tennessee and Kentucky (and I added that info to the post).

  2. Nothing like a lottery to determine your civil rights!

    1. Except when it's a lottery to determine that you don't have any civil rights.

  3. "Each side was trying to increase the chances that the case would be consolidated on favorable turf"

    Each side? I have been assured here that only the GOP does anything and everything to win.

  4. Are antisocial right-wingers going to expand their War on Science And Public Health to address the vaccine-for-students requirements imposed by mainstream American schools for more than a century?

    1. I thought it was OSHA, a federal agency, imposing a vaccine mandate on employees. Is this a different case?

      1. You're responding to The Asshole, who is congenitally, as here, unmoored from reality.

  5. While i understand the need for a lottery to eliminate an advantage for rushing to the courthouse first, the way the lottery can be gamed is just ridiculous. I don't know what the best solution is, but it's crap like this that make people skeptical of lawyers.

    1. Simple solution would be for Congress to pass a law saying that any case requesting a nationwide injunction against a law or regulation that is capable of being filed in any circuit must be filed in the first instance with Judicial Panel on Multidistrict Litigation which will then conduct a lottery. In addition, strip courts of their power to sua sponte issue a nationwide injunction, even preliminary, if this procedure has not been complied with.

    2. "it's crap like this that make people skeptical of lawyers" ... oh no, that's just the tip of the tip of the iceberg.

      How about Thomas P. Lowe, Michael Winner, Joseph Caramadre, John Milton Merritt, Paul Bergrin, William Jefferson Clinton, ... do I need to go on?

  6. So I look at today's NYT Covid case map for Michigan, Ohio, Kentucky and Tennessee, and wonder. Will 6th Circuit judges deciding a Covid case be influenced by the Covid upsurge going on around them, and if so, how? And if not, why?

    A disease still killing more than 1,000 Americans a day remains an emergency. Emergencies have legal implications. Will the 6th Circuit take account of that, pretend it isn't happening, or decide that the law matters but a pandemic doesn't?

    The Covid emergency has exhausted the nation. People want it gone. Many pretend it is gone, out of exhaustion. What about the 6th Circuit?

    1. "A disease still killing more than 1,000 Americans a day remains an emergency."

      Not happening. Well, heart disease kills about twice that, but I',m betting you're parrorting some bogus COVID-"related" number.

    2. "A disease still killing more than 1,000 Americans a day remains an emergency."
      After nearly two years, the "emergency" claim is very weak.

    3. Stephen,
      If it is such an emergency, what the hell has Biden been doing for the past 10 months. His excuse for proper action without "emergency powers" is wearing very thin.

  7. My ideal panel would be Chief Judge Jeffrey S. Sutton, Judge Karen Nelson Moore, and Judge Amul R. Thapar.

  8. I don't think emergency regulations of this sort should be subject to challenge on the grounds that they are too weak. The agency has discretion not to take the emergency route at all. Be happy with what you get. When the final regulation comes out, or when action is required by law and unreasonably delayed, that is the time to argue the agency was required based on the administrative record to mandate N99 masks or whatever.

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