The 5th Circuit Court of Appeals previously halted Joe Biden’s large employer vaccine or test mandate implemented through OSHA as beyond OSHA’s power, and on other additional grounds. After that, multiple cases around the country addressing the same issue were consolidated in the multi-district litigation procedure into a single case before the 6th Circuit Court of Appeals.
Given the importance of the case and broad national implications, a request was made for the entire 6th Circuit (“en banc”) to hear the case, not just a three-judge panel. That effort failed:
The Sixth Circuit has denied en banc review in the OSHA vaccine mandate cases. The vote was a close one, with eight judges voting in favor of initial hearing en banc. But that’s not enough under the circuit’s rules, which require a majority of the 16 active judges to vote for en banc treatment. As a result, the current panel reviewing the case will decide whether to continue the stay issued by the Fifth Circuit, which may end up being the most consequential decision in the case until it comes before the Supreme Court.
Judge Moore wrote a short concurrence to the denial, arguing that there is no need to have all 16 active judges review the “massive docket and profusion of briefs” when “three thoughtful, independent judges” have already “spent the past weeks steeped in this matter.” Judge Moore’s concurrence was joined by four other circuit judges.
Judge Sutton dissented in a 26-page opinion that was joined by seven judges.
The 6th Circuit three judge panel, in a 2-1 vogte, just dissolved the 5th Circuit Order, just reinstated the mandate. You can read the Opinion.
The COVID-19 pandemic has wreaked havoc across America, leading to the loss of over 800,000 lives, shutting down workplaces and jobs across the country, and threatening our economy. Throughout, American employees have been trying to survive financially and hoping to find a way to return to their jobs. Despite access to vaccines and better testing, however, the virus rages on, mutating into different variants, and posing new risks. Recognizing that the “old normal” is not going to return, employers and employees have sought new models for a workplace that will protect the safety and health of employees who earn their living there. In need of guidance on how to protect their employees from COVID-19 transmission while reopening business, employers turned to the Occupational Safety and Health Administration (OSHA or the Agency), the federal agency tasked with assuring a safe and healthful workplace. On November 5, 2021, OSHA issued an Emergency Temporary Standard (ETS or the standard) to protect the health of employees by mitigating spread of this historically unprecedented virus in the workplace. The ETS requires that employees be vaccinated or wear a protective face covering and take weekly tests but allows employers to choose the policy implementing those requirements that is best suited to their workplace. The next day, the U.S. Court of Appeals for the Fifth Circuit stayed the ETS pending judicial review, and it renewed that decision in an opinion issued on November 12. Under 28 U.S.C. § 2112(a)(3), petitions challenging the ETS—filed in Circuits across the nation—were consolidated into this court. Pursuant to our authority under 28 U.S.C. § 2112(a)(4), we DISSOLVE the stay issued by the Fifth Circuit for the following reasons.
There could be another attempt, now that there is a decision, to seek en banc review, though if it failed one, I don’t see a strong likelhood of it succeeding. More likely, there will be an emergency petition to the Supreme Court since there now is a split in Circuits, with one Circuit overruling another Circuit.
MORE TO FOLLOW
A press release by the Job Creators’ Network indicates they already have made some sort of Supreme Court filing:
“The Job Creators Network is disappointed the 6th Circuit has decided to side with the Biden Administration’s illegal employer vaccine mandate—on a Friday night, no less. This mandate adds an incredible burden on small business owners who are still suffering negative effects of the pandemic. This mandate will make it even harder for small business owners to find and keep employees. The 6th Circuit irresponsibly upheld an illegal rule and expects employers to somehow comply with a complicated regulation in a period of two weeks, including the holidays. JCN has immediately asked the Supreme Court to save businesses and employees from this government overreach.”
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