The Sixth Circuit today issued another equally-divided en ban decision in OSHA Vaccine case, and declined to consider the initial en banc hearings. Cole, Clay, White and Donald all wrote concurring opinions in denials of en banc. Chief Judge Sutton, Kethledge, Thapar and Bush joined Kethledge, Thapar and Larsen, Nalbandians, Readler, Murphy in writing a disapproval from the denial en banc.
Sixteen active judges are currently serving on the Sixth Circuit. Eight judges dissented in the denial of initial banc. This means eight judges needed to accept the denial. Five judges did not join the concurrence. The split indicates that Gibbons and Griffith voted in favor of the majority. Stranch did not vote.
This is an excellent guess. They would be wise to not comment on these issues. In a related matter, Judge Griffith refused to vote for the bump stock en bloc.
Judge Moore is happy to be on any panel member, no matter who they are. She said:
The case is already before the three independent, thoughtful judges who spent weeks examining this issue. The matter is properly left in the hands of them.
With Judge Sutton, I think that the initial en banc is sensible.
A few words are in order about the en banc motions in front of us—requests by roughly 59 parties that the full Court hear this case at the outset. The motion is very sensible on one level. It is an exceptional case that deserves extraordinary procedures. Given the unusual setting of these consolidated cases—a statutory delegation of authority over countless appeals to one regional court of appeals, 28 U.S.C. § 2112(a)—there is something to be said for putting all hands on deck, particularly when it comes to handling the stay motion, which could turn out to be the key decision point in all of these petitions for review. A case in which the six-month emergency rule is being questioned will have the most impact on the outcome. Traditional en banc review may not be possible.
The Sixth Circuit won’t have final authority on these issues.
This is why we support granting the motion. At another level, however, our Court divided 8-8 whether or not to grant the motion. Given the possibility of being reviewed by the U.S. Supreme Court, we will likely not be the final decisionmakers. Because of this, the Court has the option of allowing the judges to comment on the stay in opinion concurring with the decision or dissipating from the refusal of initial hearing.
The Supreme Court must decide the case fast if the Fifth Circuit cancels the Sixth Circuit’s stay.