The Sixth Circuit has denied en banc review in the OSHA vaccine mandate cases.  The vote was a close one, with eight judges voting in favor of initial hearing en banc.  But that’s not enough under the circuit’s rules, which require a majority of the 16 active judges to vote for en banc treatment.  As a result, the current panel reviewing the case will decide whether to continue the stay issued by the Fifth Circuit, which may end up being the most consequential decision in the case until it comes before the Supreme Court.

Judge Moore wrote a short concurrence to the denial, arguing that there is no need to have all 16 active judges review the “massive docket and profusion of briefs” when “three thoughtful, independent judges” have already “spent the past weeks steeped in this matter.”  Judge Moore’s concurrence was joined by four other circuit judges.

Judge Sutton dissented in a 26-page opinion which was joined by seven judges.  All but one paragraph of that opinion deals with the merits of OSHA’s emergency rule, arguing that it exceeded the agency’s statutory authority.  We will discuss Judge Sutton’s opinion on the merits of the stay, and of OSHA’s ETS itself, in more detail in a further post.

As to the en banc motion, Judge Sutton explained that this is an “extraordinary case, suitable for an extraordinary procedure” and that there may be no opportunity for traditional en banc review afterwards as the stay motion will likely be “the key decision point,” and the six-month ETS ends on May 5, 2022.  More notably from a circuit-procedure perspective, he stated that an initial en banc motion gives judges “the option to offer their perspectives on the stay motion, in opinions concurring in the denial of initial hearing en banc or dissenting from it.”  His opinion on the merits of the ETS certainly takes advantage of that option.

Judge Bush wrote a separate dissent arguing that while Congress has authority (and often has acted) to encourage vaccinations, it lacks the constitutional authority to mandate vaccines for citizens with no special relationship to the federal government.

As for who is on the actual ETS panel (a subject of much speculation lately), we note that three judges did not join a concurrence or a dissent: Judge Griffin, Judge Gibbons, and Judge Stranch.  It’s not unreasonable to guess that at least two of them are likely on the panel that will decide the stay motion.  Whether they will decide the merits, however, will depend on when the Supreme Court takes the case.  If the panel reinstates the ETS, the Supreme Court might grant an emergency stay, and take over the case, before the panel can reach the merits (recall that Judge Kavanaugh is currently assigned to the Sixth Circuit).