Ping-Pong Ball Lottery Sends Biden's Vaccine Mandate to Sixth Circuit

The U.S. Circuit Court of Appeals for the Sixth Circuit will hear challenges to President Joe Biden’s federal vaccine mandate for businesses with more than 100 employees, according to the results of a ping-pong ball lottery on Tuesday.

A ping-pong lottery occurs when multiple petitions for review are filed against the same agency, person, or business in various courts of appeal around the country. To save time and avoid contradictory outcomes, the numbers of the courts in which the suits are filed are written on ping-pong balls, stuck in a solid wood raffle drum, and one is randomly selected.

Then, the cases are consolidated and heard by whichever court won the ping-pong lottery. Thirty-four lawsuits were brought against Biden’s federal vaccine mandate in 12 different courts of appeals after the Occupational Safety and Health Administration (OSHA) published its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) on November 5. Those lawsuits will now be combined and heard in the Ohio-based Sixth Circuit court, which has a Republican judge majority 10-6.

A three-judge panel of the Cincinnati-based appeals court, which has not been selected yet, is expected to hear the first case. However, lawyers for the Phillips Manufacturing and Tower Company lawsuit filed a petition for an initial hearing en banc on Wednesday. I

f the petition is granted, the lawsuits would bypass the three-judge panel and be heard before all 16 active-duty judges on the court. Depending on the outcome of the ruling in the conservative-leaning court, the case has a decent chance of making it to the United States Supreme Court.

The result of the lottery is yet another blow to the OSHA rule — the agency suspended the implementation of its mandate affecting roughly 80 million workers on Wednesday after the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay its COVID-19 ETS. According to the court order, OSHA is to “take no steps to implement or enforce the Mandate until further court order.” The order from the Fifth Circuit will remain in effect until another ruling is reached in the Sixth Circuit.

The New Orleans-based Fifth Circuit held:

Rather than a delicately handled scalpel, the Mandate is a one-size- fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly ‘grave danger’ the Mandate purports to address.

Most of the legal challenges to the mandate come from Republican-led states and some private businesses, which argue that the rule is unconstitutional and that OSHA has exceeded its authority under federal law. Some leftist unions joined in later, instead arguing that OSHA’s rule should be even more strict.

The original deadline for the OSHA ETS was Dec. 8. However, the agency postponed the deadline until Jan. 4 following pushback after the initial announcement. The rule includes “planned inspections” as well as hefty fines for violators — up to $14,000 for first offenses.

The case is Phillips Manufacturing & Tower Co. v. Dep’t of Labor, No. 21-2048 in the U.S. Court of Appeals for the Sixth Circuit.

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