It's been only three days since the Sixth Circuit won the JPML lottery to consolidate and adjudicate every appeal nationwide challenging OSHA's vaccine mandate. Yet there have already been interesting developments.
Many petitioners in the original Sixth Circuit cases have now moved for initial en banc review—which would bypass panel review entirely and send the case to be decided by all active judges (but would not include senior judges). Almost immediately after the first such motion was filed on November 17 (in Phillips Manufacturing & Tower v. OSHA, No. 21-4028), the Sixth Circuit's En-Banc Coordinator, almost certainly acting on behalf of a motions panel, asked OSHA to respond in just six days. This was unusual both because the Court rarely calls for a response to an en banc petition, let alone an initial en banc petition, and the Court typically gives respondents about two weeks to respond. But by the next day, November 18, after other challengers filed similar petitions, the court directed OSHA to file a single consolidated response regarding initial en banc review on November 30, 2021.
The en banc petitions chiefly argue that the enforceability of the vaccine mandate is of exceptional importance, something we doubt OSHA will dispute. They also argue that the mandate is already headed for both en banc review and to the Supreme Court anyway, and so skipping a panel-level decision would be more efficient. But if the issue is headed to the Supreme Court, which does seem likely, it's not clear the Circuit should expend resources to have the entire court decide both the merits and the procedural wrangling likely to come. That's an issue that each active judge will have to decide for themselves. We look forward to reading OSHA's consolidated response on this important issue.
Along these procedural lines, we spoke with the Clerk's Office to confirm that many of the cases from other circuits have not yet been transferred to the Sixth Circuit (though, notably, the Fifth Circuit case that ordered a stay has been transferred). The Clerk's Office expects those cases to be transferred early next week. After that, the cases will be coordinated through one master docket, similar to what occurs in multi-district litigation (MDL). The Circuit may also rely on "liaison counsel," also a common MDL feature, to help coordinate a briefing schedule and other issues with all of the parties, though that remains only a possibility at this time.
We'll continue to follow these issues as they unfold.
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