Get Ready For The OSHA Vaccine Mandate Circuit Court Lottery!
Soon, the Occupational Safety and Health Administration will issue a rule pursuant to an Emergency Temporary Standard (ETS). Challenging this ETS is far more complicated than I initially realized.
First, litigation would bypass the federal district courts. Rather, pursuant to 29 U.S.C. 655(f), a pre-enforcement challenge would begin in a court of appeals.
Any person who may be adversely affected by a standard issued under this section may at any time prior to the sixtieth day after such standard is promulgated file a petition challenging the validity of such standard with the United States court of appeals for the circuit wherein such person resides or has his principal place of business, for a judicial review of such standard. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Secretary. The filing of such petition shall not, unless otherwise ordered by the court, operate as a stay of the standard. The determinations of the Secretary shall be conclusive if supported by substantial evidence in the record considered as a whole.
But, as you might suspect, many petitions will be filed in several courts of appeals. Yesterday, I wrote that this torrent of litigation could yield a circuit split. I was wrong.
Second, 28 U.S.C. 2112(a) provides that multiple challenges to the ETS standard will be consolidated in a single court of appeals. I am grateful to Sean Marotta, who wrote a helpful and concise guide to understand the Multicircuit Petition Statute. But which court of appeals? The answer is complicated.
If an agency, board, commission, or officer receives two or more petitions for review of an order in accordance with the first sentence of paragraph (1) of this subsection, the agency, board, commission, or officer shall, promptly after the expiration of the ten-day period specified in that sentence, so notify the judicial panel on multidistrict litigation authorized by section 1407 of this title, in such form as that panel shall prescribe. The judicial panel on multidistrict litigation shall, by means of random selection, designate one court of appeals, from among the courts of appeals in which petitions for review have been filed and received within the ten-day period specified in the first sentence of paragraph (1), in which the record is to be filed, and shall issue an order consolidating the petitions for review in that court of a
Article from Latest – Reason.com