The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday, the Judicial Panel on Multidistrict Litigation selected the U.S. Court of Appeals for the Sixth Circuit to hear the consolidated challenges to the Occupational Health and Safety Administration's Emergency Temporary Standard requiring large employers to require employees to get COVID-19 vaccinations or submit to regular testing and masking requirements.
Most legal observers viewed the selection of the Sixth Circuit as good news for the OSHA ETS's challengers, and bad news for the Biden Administration. This is because the Sixth Circuit has a reputation as a fairly conservative circuit, and features several of the most prominent and thoughtful right-leaning judges on the federal bench.
While the Sixth Circuit, overall, leans to the right, this does not mean that any given panel will be particularly conservative. There are currently sixteen judges in active service on the Sixth, ten who were nominated by Republican Presidents and six who were first nominated by Democrats. There are also twelve senior judges on the court who are eligible to hear cases. With 28 total judges to choose from, there is no predicting what the three-judge panel who will hear the case will look like, or whether the panel, on balance, will reflect the overall approach of the whole court.
For this reason the Ohio-based Buckeye Institute today filed a Petition for Initial Hearing En Banc asking the entire Sixth Circuit to hear the challenge in the first instance. According to Buckeye's petition, this is warranted because of the mandate's exceptional importance, and (according to Buckeye) because it conflicts with prevailing Sixth Circuit and Supreme Court authority. Taking the case en banc right away would also facilitate more rapid resolution of the litigation, as there would be no need (or ability) to petition for en banc rehearing from a three-judge panel, and a persuasive en banc decision might dissuade the Supreme Court from getting involved.
Petitions for initial hearings en banc are rare, and granting such petitions is rarer still. Thus it will be interesting to see what the Sixth Circuit does with this petition.
Update: The court has asked OSHA for a response to the petition to be filed by Tuesday, Nov. 23.
Second Update: Two additional petitions for initial hearing en banc have been filed and the court has called for a single response from OSHA to all three petitions by Nov. 30.