6th Cir. lottery pick a 'favorable' draw for OSHA vaccine mandate's challengers

Published Nov. 16, 2021 - HR Dive
Ryan Golden, Reporter

Dive Brief:

• The 6th U.S. Circuit Court of Appeals has been selected via lottery to hear the multidistrict challenge to the Biden administration's COVID-19 vaccination emergency temporary standard.
• The 6th Circuit's composition of active and senior status judges includes eight Democratic appointees and 20 Republican appointees. On Nov. 12, the 5th Circuit reaffirmed its stay of the Occupational Health and Safety Administration's ETS.
• In a statement following the Nov. 12 filing, OSHA said on its website that enforcement activity around the ETS would be effectively paused amid the proceedings. "While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation."

Dive Insight:

Rather than a coin flip, Tuesday's outcome was determined - literally - by a ping-pong ball drawing. It is that kind of chance to which the ETS, one of the most notable measures taken in response to a public health crisis in U.S. history, is subject.

In reacting to the announcement, some attorneys following the lottery noted that the draw of the 6th Circuit could favor the mandate's challengers.

"The Sixth Circuit is a favorable draw for mandate challengers, one of the best they could have hoped for," Sean Marotta, partner at Hogan Lovells said in an email. "The court has many judges skeptical of broad assertions of agency authority, and this is their chance to cement that reputation. But the three-judge panel that may initially hear the case will be selected randomly, and could be made up of a majority of Democratic appointees. It will just depend - again - on chance."

Regardless of the ensuing hearing's outcome, whichever side of the 6th Circuit's decision loses is expected to appeal to the U.S. Supreme Court.

The Biden administration may be tasked with defending the ETS from conclusions drawn by the 5th Circuit in its most recent order reaffirming its stay. The court wrote that the ETS is both "overinclusive" and "underinclusive" in scope. "On the dubious assumption that the Mandate does pass constitutional muster - which we need not decide today - it is nonetheless fatally flawed on its own terms," the 5th Circuit added.