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

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 ETS are likely happy with their draw. The Sixth Circuit was traditionally viewed as a middle-of-the-road or conservative-leaning district. However, the circuit's composition has changed dramatically over the last several years, with the addition of six Republican-appointed judges between 2017 and 2019. The current balance of the active judges on the court now favors Republican nominees, 10-6. So the three-judge panel for the case, which will be randomly selected, has many favorable permutations for the petitions. Only active judges sit en banc (i.e., when all of the active judges decide the matter), plus any senior judge that was part of the original three-judge panel's decision.⁶

This isn't the first time the Sixth Circuit has received a multicircuit case challenging a broad federal government policy. In 2015, it was selected to hear a consolidated group of challenges to the EPA's "Waters of the United States" rule. Similar to OSHA's ETS, it was widely challenged by states and private groups. Also like the ETS, the "Waters" rule was viewed as having a profound impact on a broad swath of society. The Sixth Circuit entered a preliminary stay in that case.⁷ Particularly important to the panel's decision was the need to prevent disruption of the status quo. "What is of greater concern to us," the court wrote, "is the burden—potentially visited nationwide on governmental bodies … as well as private parties—and the impact on the public in general."⁸ The court went on in words that may well be used by the ETS petitioners here: "the sheer breadth of the ripple effects caused by the Rule's definitional changes counsels strongly in favor of maintaining the status quo for the time being."⁹ (The Sixth Circuit was later reversed by the U.S. Supreme Court on an arcane jurisdictional issue.¹⁰)

However, the government has precedent on its side, too. The Fifth Circuit's recent opinion affirming its stay of the ETS noted that "in its fifty-year history, OSHA has issued just ten ETSs. Six were challenged in court; only one survived."¹¹ But where did that one survive? The Sixth Circuit, which denied a preliminary stay.¹² With that said, OSHA sought with that ETS to regulate a chemical called "acrylonitrile (AN), also known as vinyl cyanide."¹³ So it is unclear how relevant that ETS decision, issued in 1978, will be to the court's proceedings now.

What Happens Next

In the short term, the Sixth Circuit will need to decide whether to lift or modify the Fifth Circuit's stay. It seems doubtful that the Sixth Circuit will do so immediately. It will likely take action on the stay only after briefing from the parties, which will take at least a few days. It's anyone's guess how it will decide, especially without knowing who the particular judges will be.

In the slightly longer term, the Sixth Circuit will hear arguments and decide the case on the merits, initially as a three-judge panel and, possibly, again en banc. Most likely, both sides in the litigation and the Sixth Circuit itself will favor an extraordinarily expedited briefing schedule. The ETS litigation thus far has been remarkable for its dispatch, and there seems little reason for it to slow down now.

There is also the specter of eventual Supreme Court review, either through traditional channels after a Sixth Circuit decision or, alternatively, a petition for an emergency stay. Note that the Supreme Court justice assigned to the Sixth Circuit, and who would initially receive a stay petition, is Justice Brett Kavanaugh. He has espoused a healthy skepticism of the administrative state in the past generally and OSHA innovations in particular.¹⁴ However, any emergency relief in a case of this gravity would likely proceed beyond the circuit Justice to the full Supreme Court.

What Should Employers Do?

As with all things that COVID affects, the only thing certain about the ETS is uncertainty — though we can expect that the litigation will move along at a refreshingly rapid pace. The ultimate fate of the ETS is likely to be decided within months, not years.

In the interim, employers should stay up to date on litigation developments and continue to prepare themselves for the possibility of the ETS going into effect in the near future. That means that employers should be readying a final vaccination policy, compliance policy, communications plan and a confidential file for tracking employees' vaccination status. They should also bear in mind two key upcoming dates: the ETS was slated to go into effect on Dec. 5, 2021, and covered employees must have their single- or double-shot vaccine completed by Jan. 4, 2022. Those requirements being implemented on those dates remains a possibility. It's also possible that some additional states will enact their own versions of the ETS if the Sixth Circuit sides with the challengers to the ETS.

Finally, federal contractors and healthcare employers should continue to comply with their separate federal COVID-19 requirements, which have not been stayed in the OSHA ETS litigation.

Notes

¹ See generally Rules of Procedure of the J.P.M.L., Rule 25.

² Rules of Procedure of the J.P.M.L., Rule 25.5(a).

³ Id.

⁴ See COVID-19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61,402 (Nov. 5, 2021) (to be codified at 29 C.F.R. pts. 1910, 1915, 1917, 1918, 1926, and 1928).

⁵ 28 U.S.C. § 2112(a)(4).

⁶ See 6th Cir. I.O.P. 35(c).

⁷ See In re EPA, 803 F.3d 804 (6th Cir. 2015).

⁸ Id. at 808.

⁹ Id.

¹⁰ See Nat'l Ass'n of Mfrs. v. DoD, 138 S. Ct. 617 (2018).

¹¹ BST Holdings, L.L.C. v. OSHA, No. 21-60845 (5th Cir. filed Nov. 12, 2021).

¹² See Vistron Corp. v. OSHA, 1978 BL 854 (6th Cir. March 28, 1978) (en banc).

¹³ Id.

¹⁴ See SeaWorld of Florida, LLC v. Perez, 748 F.3d 1202 (D.C. Cir. 2014) (Kavanaugh, J., dissenting).

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.