Sixth Circuit Clarifies Scheduling in OSHA Vaccine Cases
On Friday evening, the Sixth Circuit issued a ruling on several pending motions in the OSHA ETS litigation. Most notably, the court denied OSHA’s motion to shorten the stay briefing and to set an expedited schedule for merits briefing—which appeared to be an attempt by the agency to obtain rulings before its emergency standards were originally set to begin. Though events had already largely left that motion in the dust, the denial indicates that the court will decide these issues on its own schedule rather than OSHA’s. The Sixth Circuit similarly denied as moot a number of pending briefs arguing for a stay of OSHA’s vaccine rule, though it stated that, if those parties and amici wanted, they could re-designate those motions as responses to OSHA’s motion to dissolve the stay. As we predicted, the Court denied the motions seeking to transfer the consolidated proceeding to the D.C. and Fifth Circuits. In addition to other housekeeping matters, the Court also denied certain challengers’ motions to hold the case in abeyance pending a decision on pending initial en banc petitions.
This essentially leaves the schedule as it was when the Court issued its November 23 scheduling order. Parties that wish to respond to OSHA’s emergency motion to dissolve stay have until Tuesday, December 7 (tomorrow) to do so. Only a handful of petitioners have filed responses in opposition so far. We expect to see at least a few more responses land on the docket (including one from the States challengers) between today and tomorrow. And replies in support of OSHA’s emergency motion to dissolve stay must be filed by this Friday, December 10. As such, the court appears to be waiting until the stay briefing is complete before it orders briefing on the merits issues. Recall as well that the Court has still not issued a decision on the pending petitions for initial en banc yet. Briefing on those petitions concluded last Tuesday, November 30. Given the way the briefing schedules have aligned, it’s quite possible that the Court will issue a decision on the pending petitions for intial en banc at or around the same time as it issues a decision on OSHA’s emergency motion to dissolve stay. We’re also watching an interesting motion filed by the State challengers asking the Court to compel production of a complete administrative record, focusing on evidence regarding any pretextual motives. OSHA has not yet responded to the motion.