Sixth Circuit Refuses to Hear Challenges to OSHA Vaccinate-or-Test Rule En Banc

The U.S. Court of Appeals, Sixth Circuit rejected several petitions to hear the initial hearing en banc of the consolidated challengers to the Occupational Safety & Health Administration’s Emergency Temporary Standard requiring employers to mandate that employees are vaccinated and/or impose COVID-19 texting. The court will now hear the consolidated challenges by a 3-judge panel. It is not known who the judges are.

The court ordered that “less than one-third of active judges”. . . Voted in favor of the initial hearing en banc. This suggests that judges are split on the issue of whether to grant initial hearing en banc, given the Sixth Circuit’s current composition.

Judge Moore, along with Judges Clay, White, and Donald, gave an opinion in which he concurred in denial of petitions for the initial hearing.

Chief Judge Sutton voted against the denials of petitions for an initial hearing en banc. He was joined by Judges Kethledge and Thapar as well as Judges Bush, Larsen Nalbandian (readler), Bush, Kethledge, Thapar and Bush. Separately, Judge Bush delivered an opinion disapproving of the denial.

Judge Gibbons, Judge Griffin, and Judge Griffin were not present at the opinions. However due to the large number of judges, it is likely that they did vote against initial hearings en banc.

The federal government’s pending motion for dissolution of the OSHA ETS stay entered by the U.S. Court of Appeals, Fifth Circuit was not addressed in today’s order. The opinion of Chief Judge Sutton, however, states that the ETS must be stopped pending resolution to the challenge. It may indicate that the three judges considering the motion are ready to lift the stop. It will all be revealed over time.

[Note:  This post will be updated with selections from the respective opinions.]