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Biden Shot-or-Test Rule in the Hands of Three Mystery Judges

Dec. 17, 2021, 10:45 AM

The identities of the three appellate judges who will decide whether to lift an order blocking the Biden administration’s Covid-19 shot-or-test rule remains shrouded in mystery, although their Cincinnati-based court provided some clues in a recent decision.

Thirteen of the 16 active-status judges on the U.S. Court of Appeals for the Sixth Circuit wrote or signed on to concurring or dissenting opinions regarding the court’s Wednesday ruling to allow a three-judge panel to hear the challenge to the rule. That has fueled speculation that some or all of the three jurists who didn’t opine are on the tribunal that’s considering a government request to dissolve the Fifth Circuit’s stay order.

A dissent from the Sixth Circuit’s chief judge also prompted some legal observers to say the court will likely lift the stay.

The composition of the three-judge panel is crucial given the differences in how judges view the scope of administrative agency power, the severity of the pandemic, and the need for vaccine mandates.

The Occupational Safety and Health Administration issued its emergency temporary regulation last month that requires employers with at least 100 employees to mandate that their workers get vaccinated against Covid-19 or tested regularly. The Fifth Circuit blocked the rule on Nov. 6, a day after it was published.

The Sixth Circuit took control of the consolidated case challenging the emergency measure after winning a multi-circuit lottery and will decide whether to dissolve that stay order.

Normally, cases in the Sixth Circuit are assigned to a pre-existing motions panel to handle procedural requests, and then transferred to a different panel to deal with the merits of the dispute. But the vast amount of briefing material in the case combined with the time pressures involved in reviewing the rule mean that the panel handling the motions—including the request to lift the stay—will keep the case, legal observers said.

The ruling on the stay could turn out to be the most important in the case, given that the rule is set to expire in May. But no matter how the appeals court decides, the U.S. Supreme Court likely will have the final word.

The Trio

The three active-status judges who didn’t opine on the court’s decision to keep the case with a panel were Jane Branstetter Stranch, an Obama appointee, as well as George W. Bush appointees Julia Smith Gibbons and Richard Griffin.

“I would guess that the panel that has the stay motion consists of the three judges who didn’t sign any opinion, but that’s speculative,” said Jonathan Adler, a law professor at Case Western Reserve University.

Judges on the panel would be reluctant to sign on to Chief Judge Jeffery Sutton’s dissenting opinion in the en banc order—which argued that the shot-or-test rule should remain blocked—to avoid appearing as if they prejudged the issue, some legal scholars and appellate lawyers said.

Moverover, Griffin is a very conservative judge who would have agreed with Sutton unless he’s on the panel, said Mark Brown, a law professor at Capital University Law School who litigates at the Sixth Circuit.

VIDEO: President Biden’s vaccine mandate rule for companies, the likely legal challenges and what to expect next.

‘Thoughtful’ and ‘Independent’

Stranch not joining Clinton-appointed Judge Karen Nelson Moore’s opinion concurring with the choice to let a three-judge panel hear the case signals that she’s on the panel, said Colter Paulson, an appellate litigator with Squire Patton Boggs in Cincinnati.

The other active-status judges who were tapped by Democratic presidents signed on to Moore’s concurrence, as did Judge Helene White, who was first nominated by Bill Clinton, then renominated by George W. Bush after she was stonewalled in the Senate.

More broadly, Moore’s opinion said the panel is staffed by “three thoughtful, independent judges,” which would make it strange for any of the panel judges to join that opinion, said David Coale, an appellate lawyer with Lynn Pinker Hurst & Schwegmann LLP. It’s not in judges’ nature to applaud their own thoughtfulness and independence in an opinion, he said.

But it’s impossible to draw conclusions about the panel’s composition based on who didn’t join the concurring and dissenting opinions, said Scott McIntyre, an employment lawyer, appellate litigator, and partner with Baker & Hostetler LLP in Cincinnati.

There are multiple reasons for judges to decline joining an opinion, including that they didn’t agree with every word, or the potential implications or writing style in the opinion, McIntyre said. Plus, the panel could include one or more of the Sixth Circuit’s 12 senior-status judges, who were ineligible to vote on whether to put the shot-or-test rule before a full “en banc” court, he said.

Does Sutton Know?

Sutton, the Sixth Circuit’s well-respected chief judge, spent most of his 27-page dissent explaining why the Fifth Circuit’s stay should stay in place. The opinion read like an effort to persuade the three-judge panel—or the Supreme Court—to keep the OSHA rule blocked, legal observers said.

Sutton’s opinion is “writing on the wall that the panel is not favorable to the challengers,” said Sean Marotta, an appellate attorney at Hogan Lovells.

“My sense is he knows how the three-judge panel will rule,” Marotta said. “And he knows his only chance to discuss the merits is dissenting from a denial of en banc review.”

But other observers said Sutton’s dissent is intended to be a blueprint for how the three-judge panel could write an opinion upholding the stay.

Either way, Sutton emphasized the importance of the debate over whether to keep the rule blocked, saying it “could turn out to be the key decision point in all of these petitions for review.”

The case is In Re: OSHA Covid Rule, 6th Cir., No. 21-07000, Order denying en banc review 12/15/21.

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com