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Capitol Correspondence - 11.18.21

OSHA Vaccination ETS Challenge to Be Heard in Sixth Circuit Court of Appeals

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The Sixth Circuit Court of Appeals was chosen by lottery to hear the multi-jurisdictional cases filed requesting to set aside the Occupational and Safety and Health Administration’s (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). It is now in the hands of the Sixth Circuit to decide whether to lift the stay issued by the Fifth Circuit.

The federal statute governing the multi-jurisdiction lottery process provides a 10-day period where challenges can be filed to an agency’s action and any circuit where a lawsuit has been filed is entered into the lottery. After that 10-day period, the Judicial Panel on Multidistrict Litigation clerk pulls a ping pong ball out of a drum to determine where the case will be heard. Since OSHA’s release of the ETS, 34 lawsuits from all 12 regional circuit courts had been filed challenging the rule. When the ping pong ball was chosen, the Sixth Circuit (based in Cincinnati with jurisdiction in Kentucky, Michigan, Ohio and Tennessee) was granted jurisdiction.

The Sixth Circuit will now be tasked with deciding whether to lift the stay of enforcement initially issued by the Fifth Circuit. Because the Sixth Circuit is a conservative-leaning circuit, it is expected to uphold the stay.