Bloomberg Law
Nov. 8, 2021, 5:26 PM

DOJ Moves to Merge Challenges to Biden’s Vaccine-or-Test Rule

Kathleen Dailey
Kathleen Dailey
Legal Reporter

The multiple legal challenges to the Biden administration’s rule requiring employers to mandate Covid-19 vaccination or regular testing will be considered by a single, randomly selected appeals court, the U.S. Department of Justice said Monday.

The Occupational Safety and Health Administration notified the Judicial Panel on Multidistrict Litigation of the 12 challenges filed in the Fifth, Sixth, Seventh, Eighth, Eleventh, and D.C. circuits. The panel is expected to hold a “multi-circuit lottery” on Nov. 16 to assign the consolidated cases to any one of those federal appeals courts.

Federal law requires agencies to notify the panel when one of their orders is challenged in more than two federal appeals courts within 10 days of its issuance, DOJ explained in the letter, which was filed in all of the cases.

The lawsuits, which primarily argue that OSHA’s Nov. 4 order is unconstitutional, were filed by 26 states and several private employers and organizations.

The Fifth Circuit temporarily blocked the rule on Nov. 6, citing “grave statutory and constitutional issues,” in a challenge brought by a group of companies.

The cases are Bentkey Services LLC v. OSHA, 6th Cir., No. 21-4027, 11/8/21; Phillips Manufacturing & Tower Co. v. OSHA, 6th Cir., No. 21-4028, 11/8/21; Indiana v. OSHA, 7th Cir., No. 21-3066, 11/8/21; BST Holdings LLC v. OSHA, 5th Cir., No. 21-6045, 11/8/21; Job Creators Network v. OSHA, 8th Cir., No. 21-3491, 11/8/21; Answers in Genesis Inc v. OSHA, 6th Cir., No. 21-4032, 11/8/21; Kentucky v. OSHA, 6th Cir., No. 21-4031, 11/8/21; Missouri v. Biden, 8th Cir., No. 21-3494, 11/8/21; Florida v. Biden, 11th Cir., No. 21-13866, 11/8/21; Southern Baptist Theological v. OSHA, 6th Cir., No. 21-4033, 11/8/21; Republican Nat’l Committee v. OSHA, D.C. Cir., 11/8/21; and Tankcraft Corp & Plasticraft Corp. v. OSHA, 7th Cir., 11/8/21.

To contact the reporter on this story: Kathleen Dailey at

To contact the editors responsible for this story: Rob Tricchinelli at; Nicholas Datlowe at