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...
