A “multi-circuit lottery” is expected to be held this week that will determine the fate of the Biden administration’s vaccine mandate issued by the Occupational Safety and Health Administration (OSHA) which set a Jan. 4 deadline for an estimated 84 million private sector workers to be vaccinated against COVID-19 or be tested weekly and wear a mask.
At least 27 states, as well as private employers, religious organizations, and other groups, have filed lawsuits against the administration’s mandate claiming that it is exceeding its authority in issuing the mandate.
As a result, there are now OSHA-related lawsuits pending in 12 different courts of appeals. The Biden administration asked for the cases to be consolidated last week and formally submitted a request on Monday.
Despite this, the administration urged private business employers on Nov. 8 to comply with the vaccine mandate and asserted that halting the implementation of the OSHA rule could lead to the deaths of workers.
The lottery being utilized this week is part of a federal law that is often used in product liability and antitrust cases involving multiple lawsuits.
Under the law, multiple challenges to the OSHA rule that have been filed in separate courts will be consolidated in a single court of appeals, selected at random.
As per the Legal Information Institute, the “Judicial Panel on Multidistrict Litigation (JPML) 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 … in which the record is to be filed, and shall issue an order consolidating the petitions for review in that court of appeals.”
Each of the U.S. Circuit courts where challenges to the OSHA rule have been filed will each get one entry, regardless of the number of cases filed in each court.
According to Sean Marotta, a partner with law firm Hogan Lovells, the OSHA will e-file what is called a “Notice of Multicircuit Petitions for Review” with the JPML.
“This will include as appendicies a schedule of all lottery-compliant petitions (which may not be all petitions) and copies of each,” Marotta explained on Twitter.
“OSHA will file copies of the Notice in all of the circuits where petitions for review are pending and on counsel for all parties to the petitions for review,” Marotta said. The entries will then be placed in a drum and the JPML, based in Washington, D.C., will randomly draw one.
“The JPML will fire up the drum and ping-pong balls and draw a circuit at random,” Marotta said. The JPML is made up of judges, and the process is run entirely by the Panel Clerk’s Office, who will have a “selector” and “witness” for the drawing.
The “selector” and the “witness” will then prepare an order on behalf of the panel directing that the petitions for review be filed in the selected circuit and that the agency record be filed in that circuit.
It is expected that the lottery will take place on Tuesday and Marotta noted that the whole process “is all going to happen quickly.”
The results of the lottery and the subsequent courts’ ruling will effectively determine whether or not employers proceed with implementing the ETS starting Dec. 6, although there is still a possibility that the cases will make their way to the Supreme Court.