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Circuit Court Lotteries a Symptom of Gridlock and Gamesmanship

Nov. 17, 2021, 11:00 AM

The realities of Congressional gridlock were on full display Tuesday when a court clerk reached into a barrel and picked the U.S. Court of Appeals for the Sixth Circuit to hear the challenges to President Joe Biden’s shot-or-test rule for American workers.

Political stalemate has pushed recent presidents to flex their administrative powers and accomplish their policy priorities through agency rulemaking rather than legislative action. That‘s led to higher stakes litigation and Republicans are not only broadening their attacks on the size and reach of the federal government, they’re appealing to more conservative courts.

There were a flurry of lawsuits filed against Biden’s rule, which forces employers with 100 or more employees to mandate workers get vaccinated against Covid-19 or submit to routine testing. Challenges were filed in every regional federal appeals court—12 in all—with the exception of the U.S. Court of Appeals for the Federal Circuit. That court doesn’t typically hear administrative law cases. The Sixth Circuit is a more conservative appeals court with 10 of its 16 active judges appointed by Republican presidents.

The Occupational Safety and Health Act sends challenges to emergency mandates from the Occupational Safety and Health Administration straight to the appellate court. When there are multiple challenges filed in different circuits, it triggers a lottery system under the rules for multidistrict litigation to determine which court will hear the dispute.

“The bigger the case, particularly nationally, the more likely you’ll get multiple circuits involved,” said Thomas McGarity, a professor at the University of Texas at Austin School of Law who helped create the lottery system.

But McGarity doesn’t remember ever seeing this many courts in the running.

When the Environmental Protection Agency finalized President Barack Obama’s Waters of the United States rule in 2015, there were eight appeals courts in the multidistrict lottery. Jennifer Simon, an environmental attorney at Kazmarek Mowrey Cloud Laseter LLP who went through the lottery system when she was representing the Southeastern Legal Foundation in one of the challenges, said there was just a lot of interest in that rule.

“At the end of the day if you have enough people interested in the rule, you’ll have people filing everywhere,” she said.

That may be true, but Jay Tidmarsh, a professor at the University of Notre Dame Law School, who is an expert in complex civil litigation and civil procedure, said there’s also been more willingness among state officials in recent years to go to court to challenge their opposing party’s administrative proposals.

“I would say that is related to political polarization,” he said.

More than 26 states with Republican attorneys generals are involved in the challenges to Biden’s vaccine mandate. As politics have become more polarized, conservatives have zeroed in on the administrative state as being one of the things that they would like to significantly curtail and that’s changed the way lawsuits over agency rulemakings are fought.

Sean Marotta, a partner and an appellate attorney at Hogan Lovells, said we’re seeing more big picture, constitutional attacks on the administrative state whereas before these cases probably would have been more limited to technical, record-based objections. And attorneys are seeking out appeals courts that may be more receptive to those bigger constitutional claims.

“I think that’s a direct result of the Trump administration’s focus on judges,” Marotta said.

So far the strategy seems to be working. The U.S. Court of Appeals for the Fifth Circuit temporarily blocked the rule. The court said the challengers had given it “cause to believe there are grave statutory and constitutional issues with the Mandate.”

But the challenges to the rule weren’t solely brought by those who oppose it. Unions supporting the regulations also filed suit—not to kill the requirement but to keep it—in what was likely an attempt to get courts with more liberal panels of judges into the lottery.

Andrew Bradt, a professor at UC Berkeley School of Law and expert in multidistrict litigation, said this sort of gamesmanship of the system is nothing new. It’s an inherent feature of our federal judicial system.

“Anytime you have multiple circuits with different political leanings, you’re going to have an incentive on both sides to roll the dice,” he said.

As more presidents push federal agencies to stretch their administrative powers in new ways, it’s reasonable to expect to see more legal challenges and bigger lotteries.

To contact the reporter on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editor responsible for this story: Andrew Childers at achilders@bloomberglaw.com; Jo-el J. Meyer at jmeyer@bloombergindustry.com

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