The legal filings from the left have a strategic purpose that could control the fate of the mandate and highlights the importance of former President Donald Trump’s ability to confirm a record number of appeals court judges during his four-year term.
That’s because under the statute governing challenges to the Occupational Safety and Health Administration regulations, all of the lawsuits are ultimately going to be consolidated in one federal appeals court via a lottery. Essentially, in order to have a favorable circuit court considered, hopeful parties have to buy a lottery ticket.
On November 16 there will be a “multi-circuit lottery” where the names of circuit courts that are currently entertaining legal challenges to the mandate will literally be put in a drum and an official will pull out one name. After that, all of the cases will be transferred to that circuit.
While no court offers a guarantee of success, the unions want to make sure that federal appeals courts with a majority or near majority of judges appointed by Democratic presidents are a part of the draw. The only way to do that is to file suit. As such, over the last couple of days unions have filed several suits across the country.
Sean Marotta, a lawyer at Hogan Lovells, says the filings “are all about maximizing the odds of a sympathetic panel of three judges to hear the cases.”
“While the Republican led-states have filed in courts with a majority of judges appointed by a Republican president, the Unions are targeting courts with a majority — or near majority — of judges appointed by a Democratic President,” Marotta said.
All in all, there are 12 regional federal judicial circuits, each of which has a court of appeals.
“The mandate’s fate could depend on which court is picked in the lottery,” he added.
OSHA, which falls under the US Labor Department, unveiled the new rules on November 4, citing its authority to issue an emergency temporary standard to protect employees if they are exposed to a “grave danger.” It requires employers with 100 or more employees to ensure that their employees are fully vaccinated or undergo regular testing and wear a face covering at work.
It is set to take effect January 4. The mandate has come under immediate challenge from Republican-led states and some private employers who charge that OSHA exceeded its power in issuing such a rule. After the first wave of lawsuits, unions joined in too. But some of the unions made the opposite argument: that OSHA had the authority to go further and issue a more stringent mandate.
Already, the conservative-dominated 5th US Circuit Court of Appeals has temporarily blocked the mandate in a challenge brought by Republican-led states and businesses holding that the petitioners “give cause to believe” that there are “grave statutory and constitutional issues with the mandate.”
That ruling, however, could dissolve once the lottery system plays out and one circuit is assigned to address all the challenges.
The 5th Circuit is a notoriously conservative court. Most recently, it allowed Texas’ six week abortion ban to remain in effect, reversing a district court. It is also the court that struck down the Affordable Care Act’s individual mandate. Of the 54 judges that Trump nominated to the appellate bench, six were appointed to the 5th Circuit.
Each day, the number of lawsuits increases but so far, almost every circuit currently has a pending case.
The Service Employees International Union filed suit in the 2nd US Circuit Court of Appeals representing 175,000 public and private sector employees. In the filing the union says it “seeks to protect and defend workers’ welfare and security, and to elevate the members and their families by improving wages, benefits and working conditions.”
The union says that the mandate “fails to adequately protect all workers” who face a grave danger from Covid-19.
Unlike the 5th Circuit, the 2nd Circuit, based in lower Manhattan, has a majority of judges, 15, appointed by a Democratic president.
To be sure, judges vote not by their political persuasion, but by their judicial philosophies. But the unions, are targeting potentially “friendly” districts, just as their opponents are.
The United Food and Commercial Workers International Union, the AFL-CIO and the American Federation of Labor and Congress of Industrial Organizations have filed suit in the United States District Court for the District of Columbia Circuit. In the liberal-leaning San Francisco-based 9th US Circuit Court of Appeals the National Association of Broadcast Employees and Technicians filed suit. And the United Association of Union Plumbers and Pipefitters (with the SEIU) filed suit in the 4th Circuit, based in Richmond.
“The goal of the unions is to get a judge in the circuit that would be more favorable to their position,” said Elizabeth Burch, a law professor at the University of Georgia Law school.
“At the end of the day you want to stack the deck as much as you can, in your favor to try to position yourself in front of judges that might look most favorably in your claims,” she added.
