The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today, the Sixth Circuit issued yet another evenly-divided en banc decision in the OSHA Vaccine cases, declining to hear the cases initial en banc. Judge Moore wrote an opinion concurring in the denial of en banc, joined by Cole, Clay, White, and Donald. Chief Judge Sutton wrote a dissent from the denial of en banc, joined by Kethledge, Thapar, Bush, Larsen, Nalbandian, Readler, and Murphy.
There are sixteen active judges on the Sixth Circuit. Eight of them dissented from the granting of initial en banc. That means that eight judges had to concur with the denial of initial en banc. But only five judges joined the concurrence. That split means three judges agreed with the majority, but did not signal their votes: Gibbons, Griffith, and Stranch.
I think it is a very good guess that these three judges are on the three-judge panel. It would make sense for them not to opine on the issues. Somewhat relatedly, Judge Griffith declined to signal his vote on the bump stock en banc vote.
Whoever is on the panel, Judge Moore seems pleased. She wrote:
the case already sits before three thoughtful, independent judges on the panel who have spent the past weeks steeped in this matter. We properly leave the matter in their hands.
I agree with Judge Sutton that initial en banc makes sense:
A few words are in order about the en banc motions in front of us—requests by roughly 59 parties that the full Court hear this case at the outset. At one level, granting the motion makes considerable sense. This is an extraordinary case, suitable for an extraordinary procedure. Given the unusual setting of these consolidated cases—a statutory delegation of authority over countless appeals to one regional court of appeals, 28 U.S.C. § 2112(a)—there is something to be said for putting all hands on deck, particularly when it comes to handling the stay motion, which could turn out to be the key decision point in all of these petitions for review. If the stay motion is the main event in a case about the legitimacy of a six-month emergency rule that ends on May 5, 2022, little opportunity for traditional en banc review will exist at the back end of the case.
Moreover, the Sixth Circuit will not have the final say on the issues:
All of this explains why we favor granting the motion. But at another level, it makes little difference that our Court has divided 8-8 on whether to grant the en banc motion. We likely will not be the final decisionmakers in this case, given the prospect of review by the U.S. Supreme Court. And the existence of the en banc motion gives the judges of our Court the option to offer their perspectives on the stay motion, in opinions concurring in the denial of initial hearing en banc or dissenting from it.
If the Sixth Circuit vacates the Fifth Circuit's stay, and the en banc court splits 8-8, then the Supreme Court will have to decide this case quickly.