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December 01, 2022

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Initial En Banc Petitions, Procedural Possibilities, and the OSHA Vaccine Mandate

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.

© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 323

About this Author

Colter Paulson Appellate Litigation Attorney Squire Patton Boggs Cincinnati, OH
Of Counsel

Colter Paulson has significant litigation experience, specializing in appellate litigation. He has successfully argued appeals before federal and state appellate courts and has extensive experience leading teams of associates in complex litigation, including multidistrict litigation and class actions.

Colter represents clients in litigation involving consumer financial services, medical devices, healthcare and manufacturing. His international experience includes cross-border litigation on behalf of clients in Asia, South and Central America, and the Middle East. His experience also...

Shams Hirji Appellate Attorney Squire Patton Boggs Cincinnati

Shams Hirji focuses his practice on appeals and critical motions. He has briefed numerous appeals in federal and state courts and has presented oral argument in the Sixth Circuit, the Ohio Supreme Court and the Ohio Courts of Appeals. Shams also maintains an active trial-court practice, ensuring that complex legal issues are resolved in favor of clients as early as possible and, if necessary, preserved for appellate review.

Before joining the firm, Shams served as a deputy solicitor general in the Office of the Ohio Solicitor General. As deputy solicitor general,...