November 15, 2021
The 5th Circuit Court of Appeals has now permanently blocked OSHA’s controversial mandate for employees at companies with more than 100 employees to either be fully vaccinated or regularly test by January 4th. But – that’s not the end. If you’re interested in this osha rule and how it’ll impact you, you’re going to want to pay attention tomorrow.
That’s because tomorrow is when a specific panel of judges will hold the multi-circuit lottery.
I’m going to explain what that is, how this process works and who these judges are and how it’ll impact the 5th circuit’s ruling.
So let’s start with the 5th circuit. Yes – the three-judge panel decided late on Friday night to uphold its stay on the OSHA rule calling it a “one-size-fits all sledgehammer.” But the 5th circuit isn’t the only one hearing cases about this very same osha rule. Cases have been filed by states, unions and private entities in the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, eleventh, and D.C. Circuit Courts of Appeals.
Now – according to the federal statue when that happens– a multi-circuit lottery is held. It’s presided over by a judicial panel made up of seven circuit and district judges designated by the Supreme Court Chief Justice. In this case — John Roberts. The rules are no two judges can be from the same circuit and four judges must agree for any decision to be made. This panel is called the judicial panel on multi-district litigation.
That multi-circuit lottery is scheduled to happen tomorrow.
So who sits on this panel? These are all district court judges from different states. Two were appointed by President George W Bush, two were appointed by President Clinton, two appointed by President George H.W. Bush and one was appointed by President Obama. I put their names and where they’re from on my website.
Those judges will, by “means of random selection, designate one court of appeals” from the circuits that have pending cases before them and then consolidate them and transfer them into one circuit.
That means unless another suit is filed – like immediately – the only circuits going into the lottery will be first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, eleventh, and D.C. circuit. Each circuit gets a single entry no matter how many lawsuits were filed in that circuit.
Now here’s where things get a little tricky. Remember — the 5th Circuit Court of Appeals just issued its ruling to block this OSHA rule. If the 5th circuit is selected as the lottery winner then that ruling stands. But if the 5th circuit is *not* selected as the circuit to hear the case, then the winning circuit judges have the power to modify, revoke or extend that ruling and then will move forward with these consolidated cases.
Judicial Panel on Multi-District Litigation
Chair: Judge Karen Caldwell from Kentucky appointed by President George W Bush
Panel: Judge Nathaniel Gorton from Massachusetts appointed by President George HW Bush, Judge Matthew Kennelly from Illinois appointed by President Bill Clinton, Judge David Norton from South Carolina appointed by President George HW Bush, Judge Roger Benitez from California appointed by President George W Bush, Judge Dale Kimbell from Utah appointed by President Bill Clinton, and Judge Madeline Cox Arleo from New Jersey appointed by President Obama.
Statute on multi-circuit lottery: 28 U.S.C. § 2112(a)(3)
Statue on judicial panel on multi-district litigation: 28 U.S.C. § 1407(d)
