By GEOFF MULVIHILL, Associated Press
Challenges to President Joe Biden’s COVID-19 vaccine mandate for private employers will be consolidated in the U.S. 6th Circuit Court of Appeals, a panel dominated by judges appointed by Republicans.
The Cincinnati-based court was selected Tuesday in a random drawing using ping-pong balls, a process employed when challenges to certain federal agency actions are filed in multiple courts.
The selection could be good news for those challenging the administration’s vaccine requirement, which includes officials in 27 Republican-led states, employers and several conservative and business organizations.
They argue the U.S. Occupational Safety and Health Administration does not have the authority to impose the mandate.
The challenges, along with some from unions that said the vaccine mandate didn’t go far enough, were made this month in 12 circuit courts. Under an arcane system, it was up to the clerk of the Judicial Panel on Multidistrict litigation to select a ping-pong ball from a bin to choose where the cases would be heard.
It was a favorable outcome for Republicans. Eleven of the 16 full-time judges in the 6th Circuit were appointed by Republican presidents. Accounting for one of the Republican-appointed judges, Helene White, who often sides with judges appointed by Democrats and adding senior judges who are semi-retired but still hear cases, the split is 19-9 in favor of Republicans. Six of the full-time judges were appointed by former President Donald Trump.
Another court where a majority of judges were nominated by Republicans, the New Orleans-based 5th Circuit Court of Appeals, issued a ruling that put the mandate on hold.
It’s not clear whether the court that will hear the case will act as the 5th Circuit did and side quickly with the Republican challengers. But legal experts have become increasingly concerned in recent years about the politicization of both federal and state courts, raising questions about whether justice is fairly administered or dispensed through a partisan lens.
Under federal law, cases challenging federal agency actions get consolidated upon the agency’s request if they are filed in multiple circuit courts. Each circuit where a challenge is filed within the first 10 days of the agency taking action has an equal chance of being selected.
It was up to the judicial panel’s clerk, John W. Nichols, to select a ping-pong ball from a bin, according to a Tuesday court filing by the panel. The office denied a request by The Associated Press to allow media access to the drawing.
Previously this year, the lottery had been used to assign just two cases. One involved fallout from a National Labor Relations Board ruling on an anti-union Twitter message by Tesla founder Elon Musk where objectors filed in two circuits. The other was over orders from the Federal Energy Regulatory Commission in which objectors filed in three.
The employer vaccine mandate is higher profile and further reaching. It calls for businesses with more than 100 workers to require employees to be vaccinated by Jan. 4 or wear masks and be tested weekly for COVID-19. Exemptions are provided for religious reasons and for those who work at home or only outdoors.
Because it’s an unusual rule from the workplace safety agency, there is no consensus among lawyers on how the challenges will go. OSHA has issued just 10 emergency rules in the half century since it was formed. Of the six challenged in court, only one survived intact.
The Biden administration has insisted it’s on strong legal footing. It also has the backing of the American Medical Association, which filed papers in support of the mandate.
“The AMA’s extensive review of the medical literature demonstrates that COVID-19 vaccines authorized or approved by FDA are safe and effective, and the widespread use of those vaccines is the best way to keep COVID-19 from spreading within workplaces,” the group said in its filing.
Among those challenging the rule is a consortium of construction contractors. They say they want their workers vaccinated, but that a requirement only on larger companies is just pushing vaccine-hesitant workers to take jobs with companies that have fewer than 100 employees.
“Crafting an unworkable rule that will do little to get construction workers vaccinated is an approach that is not only wrong, but likely counterproductive,” said Scott Casabona, president of Signatory Wall and Ceiling Contractors Alliance.
Officials with the workplace safety agency say they’re considering extending the mandate to smaller employers.
A three-judge panel of the 5th Circuit extended the stay of the OSHA rule in an opinion released last Friday, expressing skepticism that the agency had authority to implement the vaccine requirement. The 6th Circuit could modify, revoke or extend the stay.
It had not yet been determined which judges from the 6th Circuit will be on a three-judge panel to hear the case or whether it will be considered by all the judges.
The U.S. Department of Justice declined to comment on the selection of the court.