Four separate groups of petitioners challenging the OSHA ETS, including a coalition of 27 states, have asked the court to hear the OSHA challenge en banc, arguing that the case involves a question of exceptional importance in that it is an “unprecedented mandate of COVID vaccines based on a rarely used law of questionable applicability.” Bentkey Servs., LLC d/b/a The Daily Wire v. OSHA, U.S. Dep’t of Labor, Docket 21-4027, Docket Entry , p. 3 (6th Cir.).
Federal appellate cases are normally heard by a 3-judge panel selected at random. Before appealing to the U.S. Supreme Court, the losing side may then petition for rehearing en banc, meaning that all of the active circuit judges would review the case and a majority of those could overturn or affirm the decision of the 3-judge panel.
Rule 35 of the Federal Rules of Appellate Procedure allows parties to request that the circuit bypass the normal 3-judge panel and have the case initially heard by all the active judges where the case “involves a question of exceptional importance.” The petitioners argue that the OSHA ETS involves important constitutional questions about appropriate delegation of authority to OSHA, the Commerce Clause, and state versus federal powers under the 10th Amendment to the U.S. Constitution. The answers to these questions will affect about 80 million people in this country and their right to make personal healthcare decisions. Petitioners also argue that having the case heard en banc will promote judicial efficiency because the decision of the 3-judge panel would likely result in a request for a rehearing en banc anyway. The OSHA ETS is hotly contested and politically charged, as evidenced by the various petitioners on both sides of the issue which have filed 34 petitions to review the ETS in 12 federal judicial circuits.
The government has until November 30, 2021 to file one consolidated response to all the petitions for the case to be heard en banc.
If you have questions about your compliance obligations under applicable federal or state laws, please reach out to a member of our Workplace Safety and Health Practice Group or COVID-19 Team.