Health Law

6th Circuit picked to consider 34 challenges to vaccine mandate; these plaintiffs filed initial suits there

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The 6th U.S. Circuit Court of Appeals at Cincinnati was picked in a court lottery Tuesday to hear 34 consolidated challenges to the Biden administration’s vaccine mandate for larger employers.

The clerk of the Judicial Panel on Multidistrict Litigation conducted the drawing, reports. Each circuit got one lottery entry, even if multiple lawsuits were filed there.

The selection process involved “pingpong balls and a drum,” according to Stephen Vladeck, a professor at the University of Texas School of Law, who spoke with Law360.

The Occupational Safety and Health Administration imposed the vaccine mandate in an emergency rule that applies to businesses with more than 100 employees. The businesses must require workers to get vaccinated or to wear a face mask indoors and test negative for COVID-19 on a weekly basis.

Republican-led states that challenged the rule filed in conservative-leaning appeals courts, while unions contending that the rule didn’t go far enough mostly targeted liberal-leaning circuits.

The conservative-leaning 6th Circuit was the venue chosen by plaintiffs that included Kentucky, a conservative media company and religious groups, according to Reuters. Challenges to emergency standards are filed directly in federal appeals courts, rather than district courts, under the Occupational Safety and Health Act, according to Bloomberg Law.

When multiple petitions for review of a single agency action are filed in at least two courts of appeals within 10 days, a drawing happens to determine which circuit will hear the consolidated cases, according to

The case will first be heard by a 6th Circuit panel, rather than the en banc court, Vladeck told Law360.

The 5th Circuit at New Orleans temporarily stayed the rule Nov. 6 and then kept the stay in place in a Nov. 12 decision. The appeals court said the mandate “grossly exceeds OSHA’s statutory authority.”

The 6th Circuit can now agree with, modify or vacate the 5th Circuit ruling, Vladeck told Law360.

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