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Unions Test Vaccine Rule in Strategic Liberal Court Filings (3)

Nov. 10, 2021, 3:07 PMUpdated: Nov. 15, 2021, 6:37 PM

Unions have challenged the Biden administration’s Covid-19 vaccine-or-testing mandate for employers in six federal appeals courts—an apparent effort to support the emergency rule, not block it.

The union lawsuits were filed in three appeals courts that have a majority of Democratic-appointed judges and one with a partisan split, improving the chances a circuit panel will look favorably on the administration’s mandate. New litigation was also filed in two circuits with Republican-appointed majorities.

Overall, the filings signal a strategy of adding liberal or split venues to the pool of circuit courts that will be considered in a lottery to determine which judicial panel will sort out the many challenges.

The Massachusetts Building Trades Council, the Service Employees International Union Local 32BJ, and the United Association of Union Plumbers and Pipefitters contested the rule in the First, Second, and Fourth circuits, respectively; all three have Democratic-appointed majorities.

The United Food and Commercial Workers International Union filed a petition for review in the D.C. Circuit, which is evenly divided between Democratic- and Republican-appointed judges.

The American Federation of Teachers’ Pennsylvania affiliate filed in the Third Circuit, which has a Republican majority. The National Association of Broadcast Employees and Technicians sued in the U.S. Court of Appeals for the Ninth Circuit, which has a one-judge GOP edge.

The Fifth Circuit in Louisiana temporarily froze the Occupational Safety and Health Administration’s rule on Nov. 6, but the wave of litigation continues to build toward the lottery process. That circuit panel extended the stay with a Nov. 12 decision slamming the OSHA regulation.

That lottery will initially determine which court has jurisdiction over a case that consolidates the raft of petitions filed since the emergency regulation was finalized last week. Petitions have now been filed in at least 11 circuits; six of those have majorities made up of judges appointed by Republican presidents, three are controlled by Democratic appointees, and two are split.

The Nov. 16 lottery will give each circuit that has received a petition a single entry no matter how many petitions were filed there.

Marc Perrone, president of United Food and Commercial Workers International Union, speaks during a U.S. Senate hearing in May 2020.
Photographer: Carlos Barria/Reuters/Bloomberg via Getty Images

The circuit that ultimately gets the consolidated case could play a crucial role in determining whether OSHA’s rule survives review, given the inevitable variance in how judges view the proper scope of administrative agency power and the need for vaccine mandates. Favorable circuit precedent also could make a difference in litigation.

While the partisan breakdowns of the circuits are important, the case eventually will be assigned to a three-judge panel of the circuit that wins the lottery. That means a partisan majority circuit-wide doesn’t guarantee the panel will have the same majority. An exception is the Eighth Circuit, which has only one Democratic-appointed judge.

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Strategy Used in Obama Era

The regulation calling for vaccine-or-testing mandates requires employers with at least 100 workers to ensure their employees get the shot or test regularly. The agency’s emergency authority allows it to issue temporary rules necessary to address a “grave danger” facing workers.

Most of the union petitions didn’t provide arguments against the rule, while SEIU Local 32BJ briefly contended that the OSHA standard “fails to adequately protect all workers who face a grave danger from COVID-19 exposure in the workplace.”

By asserting the rule isn’t protective enough, the unions would be tapping into a legal playbook they successfully deployed to safeguard from business lawsuits an Obama-era OSHA rule limiting workers’ exposure to silica dust.

In 2016, construction unions challenged the agency over the silica standard—also arguing it should be strengthened—in the D.C. Circuit, which proceeded to win the multi-circuit lottery. A three-judge D.C. Circuit panel with a majority of Democratic-appointed judges eventually upheld most of the silica rule, which the Trump administration then implemented.

The cases are Nat’l Ass’n of Broadcast Employees & Technicians v. OSHA, 9th Cir., No. 21-71370, petition filed 11/9/21, United Ass’n of Journeymen v. OSHA, 4th Cir., No. 21-02262, petition filed 11/9/21, and SEIU v. OSHA, 2d Cir., No. 21-2800, 11/9/21, UFCW v. OSHA, D.C. Cir., Petition filed 11/8/21, AFT Pennsylvania v. OSHA, 3d Cir., No. 21-03088, Petition filed 11/10/21, and Massachusetts Building Trades Council v. OSHA, 1st Cir. App., No. 21-1926, Petition filed 11/9/21.

(Updated seventh paragraph to account for the Fifth Circuit's Nov. 12 decision to maintain a stay on the rule. An earlier correction adjusted the partisan breakdown of Ninth Circuit judges. The story originally published Nov. 10.)

To contact the reporters on this story: Ben Penn in Washington at bpenn@bloomberglaw.com; 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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