Court lottery will determine which federal appeals court hears vaccine challenges

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A lottery is expected to happen this week to determine which federal appeals court will hear legal challenges to the Biden administration’s vaccine mandate for larger employers.

Republican-led states and employers aren’t the only plaintiffs challenging the mandate, report CNN and NPR. Labor unions have also filed lawsuits, some of which argue that the requirement doesn’t go far enough.

The Republican-led states filed in conservative-leaning appeals courts, while unions mostly targeted liberal-leaning circuits. The legal filings “are all about maximizing the odds of a sympathetic panel of three judges to hear the cases,” said Sean Marotta, a lawyer at Hogan Lovells, who spoke with CNN.

The Occupational Safety and Health Administration imposed the 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.

The rule says unvaccinated workers must begin wearing masks by Dec. 5, and workers getting vaccines must complete their regimen by Jan. 4.

The lottery is part of a federal law that is often used in product liability and antitrust cases involving multiple lawsuits, according to NPR. Under the law, when multiple lawsuits involving common questions of fact are filed in separate courts, the petitions are consolidated before one court chosen at random.

Each circuit gets one lottery entry, even if multiple lawsuits are filed there. The clerk of the Judicial Panel on Multidistrict Litigation draws the winning entry.

The 5th U.S. Circuit Court of Appeals at New Orleans temporarily stayed the rule Nov. 6 and then kept the stay in place in a decision Friday. The Washington Post and the New York Times are among the publications that covered the Nov. 12 decision. How Appealing links to additional coverage.

The appeals court said the mandate “grossly exceeds OSHA’s statutory authority.”

“Rather than a delicately handled scalpel, the mandate is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces,” the appeals court said in an opinion by U.S. Circuit Judge Kurt Engelhardt.

The 5th Circuit ruling “could dissolve once the lottery system plays out and one circuit is assigned to address all the challenges,” according to CNN.

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