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Odds Are GOP-Heavy Panel Hears Shot-or-Test Rule at 6th Circuit

Nov. 17, 2021, 9:29 PM

A federal appeals court in Cincinnati could ensure that Republican-appointed judges control the legal challenge to the Biden administration’s vaccinate-or-test rule, making defending the regulation more difficult.

The U.S. Court of Appeals for the Sixth Circuit will host the consolidated case against the emergency regulation after being picked Tuesday in a lottery. The case typically would go before a three-judge panel, which could be composed of a majority of judges who were appointed by Democratic presidents, although that would defy the odds at a tribunal with more than twice as many Republican-appointed jurists compared to those tapped by Democrats.

But the Buckeye Institute, a conservative Columbus, Ohio-based think tank, has asked the active-status judges on the Sixth Circuit to break from normal procedure and hear the case. GOP-appointed judges on active status outnumber those selected by Democrats 11-5. The circuit accepted a similar invitation in an abortion-related case earlier this year.

The partisan breakdown of the judges who hear the case likely will be an important factor in whether the rule survives, 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 U.S. Supreme Court likely will decide the rule’s ultimate fate, but the Sixth Circuit ruling could be crucial in how it frames the legal issues in the case. And a decision that rejects the rule—coupled with the Fifth Circuit’s pre-lottery order staying the regulation—may be enough for the high court to decline to take the case down the road.

The Occupational Safety and Health Administration finalized its contentious emergency temporary standard 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—requiring employers to mandate that their workers get vaccinated against Covid-19 or tested regularly—applies to employers with at least 100 workers.

Republican attorneys general, businesses, unions, and other organizations filed a slew of petitions seeking review of the OSHA rule in 12 different circuit courts, each of differing political composition. Including those on senior status, the Sixth Circuit has 20 judges appointed by Republican presidents compared to just eight appointed by Democrats.

Now the lottery-selected court must decide how to handle the dispute.

“This is unprecedented,” said Scott McIntyre, an employment lawyer and appellate litigator with Baker & Hostetler LLP in Cincinnati. “No one other than the judges knows how it will ultimately play out. All we can do is look at the variables.”

Three Judges or Full Court?

The Sixth Circuit will have to hear incoming motions, which almost certainly will include a request to lift the Fifth Circuit’s stay order. OSHA announced Wednesday it suspended efforts to implement the measure, pending further orders. Employers had faced a Dec. 5 deadline to have a compliance program in place needed to require vaccinations or testing by Jan. 4.

“OSHA remains confident in its authority to protect workers in emergencies,” the agency said in a statement.

Meanwhile, those fighting over the rule also may file motions to expedite consideration of the consolidated case and to transfer it to another circuit.

The court also will need to devise a consolidated briefing schedule, a potentially complicated issue considering the sheer number of parties involved in the case. More than 30 petitions were filed at the various circuits before consolidation.

Normally, the process for resolving those issues would be handled by one of the preexisting motion panels, which are composed of three active- or senior-status judges. The circuit would then transfer the case to the merits panel to consider the central issues in the case. Judges who sat on the motion panel assigned to the case would be eligible to sit on the merits panel.

But the Buckeye Institute, which represents two companies challenging the rule, has invited the court’s 16 active-status judges to take the case from the outset. The group argued in its motion that full court consideration is warranted because OSHA’s rule raises “raises questions of exceptional importance” and contravenes circuit and U.S. Supreme Court precedent.

GOP-Heavy Court

The three-judge Fifth Circuit panel ruling that extended its earlier stay on Nov. 12 underscores why initial consideration by the full Sixth Circuit could benefit the challengers.

The Fifth Circuit panel’s strident, fiery opinion—which was authored by one Trump appointee and joined by another—demolished the OSHA rule, calling it unlawful and probably unconstitutional, potentially foreshadowing the Sixth Circuit viewpoint

Six of that circuit’s 16 active judges were also appointed by the Trump administration.

While 11 of the active judges were selected by Republican administrations, the true partisan breakdown is 10 GOP appointees to six Democratic appointees, said Jonathan Adler, a law professor at Case Western Reserve University. Judge Helene White was first nominated by the Clinton administration but never got a Senate vote, and was then renominated by George W. Bush.

Majority Rules

Full circuit consideration of a case—known in legal circles as “en banc review”—is normally requested after a three-judge panel rules in a case. Part of the importance of such review is that three-judge panels can’t overturn circuit precedent, but full circuit panels can.

The Sixth Circuit skipped over three-judge panel review in April, when it agreed to go straight to en banc review in a case involving Tennessee’s mandatory 48-hour waiting period for women seeking abortions. The full court went on to uphold the waiting period requirement in August.

Despite that recent example, it’s unlikely the full court would take the case from the outset, said Colter Paulson, an appellate litigator with Squire Patton Boggs in Cincinnati. Administering the consolidated case seems like it would be a “nightmare” for a 16-member court to handle efficiently, and it doesn’t deal with circuit precedent in the way that en banc review often does, he said.

The political nature of the OSHA rule also suggests the full circuit wouldn’t deviate so sharply from normal procedure, Paulson said. Sixth Circuit Chief Judge Jeffrey Sutton, who cares about how the public views the court, has generally discouraged en banc review, he said.

“But if a majority of judges want en banc review,” Paulson said, “then there’s no way to avoid it.”

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

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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