Today the U.S. Court of Appeals for the Sixth Circuit denied several petitions for initial hearing en banc of the consolidated challenges to the Occupational Safety and Health Administration’s Emergency Temporary Standard requiring large employers mandate their employees get vaccinated or impose regular texting for COVID-19. This means that the consolidated challenges will be heard by a three-judge panel of the court. The judges on that panel have not yet been disclosed.
According to the court’s order, “less than a majority of the active judges . . . voted in favor of initial hearing en banc.” Given the current composition of the Sixth Circuit, this suggests that the judges split 8-8 on whether the grant the initial hearing en banc.
Judge Moore delivered an opinion concurring in the denial of the petitions for initial hearing, joined by Judges Cole, Clay, White and Donald.
Chief Judge Sutton dissented from the denial of the petitions for initial hearing en banc, joined by Judges Kethledge, Thapar, Bush, Larsen, Nalbandian, Readler, and Bush. Judge Bush also delivered a separate dissenting opinion.
Neither Judge Gibbons nor Judge Griffin joined any of the above opinions, but given the number of judges on the court, it appears they did not vote in favor of initial hearing en banc.
Today’s order did not address the federal government’s pending motion to dissolve the stay against the OSHA ETS entered by the U.S. Court of Appeals for the Fifth Circuit. Chief Judge Sutton’s opinion, however, argues that the ETS should be stayed pending resolution of the challenge, which may suggest the three-judge panel considering the government’s motion is prepared to lift the stay. Time will tell.
[Note: This post will be updated with selections from the respective opinions.]
The post Breaking: Sixth Circuit Refuses to Hear Challenges to OSHA Vaccinate-or-Test Rule En Banc appeared first on Reason.com.
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