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Sixth Circuit Wins Lottery to Weigh Biden Shot-or-Test Rule (1)

Nov. 16, 2021, 9:14 PMUpdated: Nov. 16, 2021, 10:22 PM

A federal appeals court in Cincinnati has won the lottery to handle the consolidated case challenging the Biden administration’s emergency regulation requiring large employers to mandate that their workers either get vaccinated against Covid-19 or test regularly.

The case will go to a panel of three judges from the U.S. Court of Appeals for the Sixth Circuit, a federal panel on multidistrict litigation announced Tuesday. The majority of judges in that circuit were appointed by Republican presidents.

While the Sixth Circuit won the random draw, the lottery doesn’t necessarily end the jockeying over which court will ultimately hear the case. Parties can petition circuit courts to transfer the case elsewhere.

And no matter what happens at the circuit court level, the U.S. Supreme Court is likely to have the final say on the vaccinate-or-test emergency temporary standard. Yet the appeals court’s decision could set the table for the justices by framing the debate and raising which legal questions will determine the rule’s fate.

The Sixth Circuit’s roster of active and senior status judges includes 20 judges appointed by Republicans and six appointed by Democrats, tilting the odds towards a GOP majority panel and potentially giving the shot-or-test rule’s opponents an advantage. About a third of the circuit’s active status judges were tapped by the Trump administration.

Republican-appointed judges are generally expected to be more skeptical of the emergency regulation, given partisan differences in views on administrative agency power and the need for vaccine mandates, legal observers said.

An all-GOP, three-judge Fifth Circuit panel in New Orleans trashed the rule—calling it unlawful and probably unconstitutional—in an opinion last week that upheld a stay on the standard. That decision revealed how hostile some Republican-appointed judges are to the regulation. Two of those three judges were appointed by the Trump administration.

The Occupational Safety and Health Administration finalized its contentious rule earlier this month, which it issued under its power to set temporary regulations necessary to address workplace hazards that present a “grave danger.” The rule applies to employers with at least 100 workers.

Republican attorneys general, employers, unions, and other organizations filed 34 petitions seeking review of the OSHA rule in 12 different circuit courts, according to the U.S. Judicial Panel on Multidistrict Litigation. Unions sued in an apparent—and ultimately unsuccessful—attempt to steer the litigation to one of the circuits that may have been more inclined to uphold the regulation.

Although the Fifth Circuit temporarily halted the rule before the case was transferred, the Sixth Circuit will have the authority to modify or lift that order.

The case eventually will be assigned to a three-judge panel, meaning the Republican-appointed judge majority in the entire circuit doesn’t guarantee the panel will have the same majority.

(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; John Lauinger at jlauinger@bloomberglaw.com

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