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Biden Shot-or-Test Rule to Get Standard Three-Judge Review (1)

Dec. 15, 2021, 5:44 PMUpdated: Dec. 15, 2021, 8:53 PM

A federal appeals court in Cincinnati will allow a three-judge panel hear the legal challenge to the Biden administration’s contentious Covid-19 shot-or-test rule, leaving open the possibility that a Democratic appointee-dominated tribunal rules on that emergency regulation.

The U.S. Court of Appeals for the Sixth Circuit on Wednesday rejected petitions seeking initial review of the measure by the court’s full complement of active-status judges, which is composed of 11 Republican appointees and five selected by Democratic presidents. Twenty-seven states with Republican attorneys general, the Republican National Committee, and other challengers sought full court review.

The three-judge panel will be drawn from the Sixth Circuit’s roster of 28 active- and senior-status judges, which includes 20 jurists nominated by GOP presidents.

The partisan composition of the panel likely will be an important factor in whether the shot-or-test measure survives judicial review, given the political differences in views on the severity of the pandemic, the importance of vaccine mandates, and the proper scope of administrative agency power, legal observers said.

The Occupational Safety and Health Administration finalized its shot-or-test rule last month, which it said it was issuing under its power to set temporary regulations necessary to address workplace hazards that present a “grave danger.” The rule—requiring employers to mandate that their workers get vaccinated against Covid-19 or tested regularly—applies to employers with at least 100 workers.

The emergency measure has been on hold since the Fifth Circuit froze it with a Nov. 6 stay order. The Sixth Circuit, which got control of the consolidated case challenging the regulation after winning a multi-circuit lottery, is considering a government request to lift the stay.

Even Split

Appeals courts typically reserve full “en banc” review for giving decisions from three-judge panels a second look, especially if they were decided by the application of binding circuit precedent. Only en banc circuit courts can overturn their own precedents.

But the Sixth Circuit broke from this tradition in April, when it agreed to initial en banc review of a Tennessee abortion-related law.

The requests to consider the OSHA emergency rule en banc failed to win support from a majority of the appeals court’s active judges. They split evenly, with eight judges on either side of the issue, according to Chief Judge Jeffrey Sutton’s dissenting opinion.

GOP-appointed judges on active status outnumber jurists tapped by Democratic presidents by a 20-to-eight margin, including 11-to-five edge among active-status judges. But in practical terms, the Republican advantage is more like 19-9 circuit-wide and 10-6 among active judges. Judge Helen White was nominated by a Democratic president before she was stonewalled by the Senate, renominated by a Republican president, and finally confirmed.

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

Judges Speak

Clinton-appointed Judge Karen Nelson Moore said in a concurring opinion that she was “relieved” that the court stuck to normal order. Four judges joined her concurrence.

“This case shows the folly of initial hearing en banc,” Moore said. “The massive docket and profusion of briefs, as in an especially complex matter before a district court, require focused consideration by a devoted panel.”

Sutton, a George W. Bush appointee, said in his dissent that it makes sense on “one level” to hear the case en banc. “This is an extraordinary case, suitable for an extraordinary procedure,” he said. But at the same time, it doesn’t matter that much because the U.S. Supreme Court likely will have the final say, Sutton said.

Sutton spent most of his dissenting opinion explaining why he would keep the Fifth Circuit’s stay in place. Seven judges joined his dissent, including all six of the circuit’s Trump appointees.

Judge John Bush, selected by the Trump administration, also penned a separate dissent. Bush characterized the shot-or-test rule as a “de facto national vaccine mandate” and “compulsory vaccination,” saying that Congress—which created OSHA via the Occupational Safety and Health Act—likely lacks the constitutional power to impose the measure, which should be left to the states.

The case is In Re: OSHA Covid Rule, 6th Cir., No. 21-07000, petitions denied 12/15/21.

(Updated with additional reporting throughout.)

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; Andrew Harris at aharris@bloomberglaw.com