The Sixth Circuit Wins The OSHA ETS Lottery: What We Know And What Happens Next

• Published date: 24 November 2021
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Coronavirus (COVID-19), Health & Safety, Trials & Appeals & Compensation, Employment and Workforce Wellbeing
• Law Firm: Holland & Knight
• Author: Mr Timothy Taylor, Howard Sokol, Frederick D. Braid, Gina A. Fonte, Meghan McCaig and Amit Agarwal

Highlights

• The U.S. Court of Appeals for the Sixth Circuit has been selected in a random draw to hear the many consolidated challenges to the recent COVID-19 emergency temporary standard (ETS) issued by the Occupational Safety and Health Administration (OSHA). The Sixth Circuit's decision will be applied across the United States.
• The Sixth Circuit inherits one of the broadest challenges to federal agency action in recent memory. Petitions were filed in all 12 federal circuit courts of appeals and represent a wide variety of state and private interests.
• It also inherits the Fifth Circuit's recent nationwide stay on implementation and enforcement of the ETS. The Sixth Circuit will have to decide whether to modify, revoke or extend the stay As for now, the ETS remains frozen.

When multiple parties sue a federal agency in different appeals courts, a special judicial panel consolidates the cases and selects one court to hear them all.¹ And how is that done? By power ball. "[T]he clerk of the Panel shall randomly select a circuit court of appeals from a drum containing an entry for each circuit wherein a constituent petition for review is pending."² No circuit gets extra entries, and the drawing is witnessed so there's no cheating.³

Thus it is that an entry for the U.S. Court of Appeals for the Sixth Circuit was selected from a barrel of tumbling balls on Nov. 16, 2021. The Sixth Circuit will now hear the many consolidated challenges to the recent COVID-19 emergency temporary standard (ETS) issued by the Occupational Safety and Health Administration (OSHA).⁴ The Sixth Circuit covers Michigan, Ohio, Kentucky and Tennessee, and sits for its cases in Cincinnati. In this situation, however, the Sixth Circuit's decision will be applied across the United States.

The Sixth Circuit inherits one of the broadest challenges to federal agency action in recent memory. Petitions were filed in all 12 federal circuit courts of appeals and represent a wide variety of state and private interests.

The Sixth Circuit also inherits the Fifth Circuit's recent nationwide stay on implementation and enforcement of the ETS. (See Holland & Knight's previous alert, "Fifth Circuit Extends Stay of OSHA's Emergency Temporary Standard on COVID-19 Vaccination," Nov. 15, 2021.) The Sixth Circuit will have to decide whether the stay should be "modified, revoked, or extended."⁵ But as for now, the ETS remains frozen.

What We Know About the Sixth Circuit

The petitioners seeking to set aside the...