Challenges to OSHA Vaccine-or-Test Standard to Be Heard by Sixth Circuit

The ping-pong ball is drawn. In the Sixth Circuit, all the union and state challenges to the Occupational Safety and Health Administration’s Emergency Temporary Standard (“ETS”), which mandates large employers to have regular testing and vaccinations for their employees, will be consolidated.

Given the fact that there have been challenges filed in each of twelve regional circuits as well as more than three dozen parties to this case, it will not be a small matter. Employer groups and red states initially filed challenges in more conservative circuits. On Friday, the Fifth Circuit granted a stay, asserting that OSHA was illegal. Progressive groups and blue states responded to OSHA’s actions by challenging it in liberaler circuits. Both sides were trying to improve the odds that the case would settle on favorable ground by increasing the number favorable circuits in lottery draws. Josh Blackman’s post on the lottery has additional information. Sean Marotta’s twitter feed.)

Sixth Circuit is the “winning” court and generally considered conservative. Current split between active judges is 6-6. This favors nominees from Republican presidents. Helene White was the eleventh judge. She was initially appointed by Bill Clinton. However, White was later renominated in accordance with Senate Democrats by George W. Bush.  Additionally, twelve (!) other judges are on the panel. There are also twelve (!) senior judges.

Here is a list of Sixth Circuit judges.

Being an avid follower of the Sixth Circuit, this is a case I’m excited about seeing in my circuit. It is evident that the circuit judges are very intelligent and I can expect to hear thoughtful opinions.