However, the government has precedent on its side, too. Supreme Court on an arcane jurisdictional issue. "What is of greater concern to us," the court wrote, "is the burden-potentially visited nationwide on governmental bodies … as well as private parties-and the impact on the public in general." 8 The court went on in words that may well be used by the ETS petitioners here: "the sheer breadth of the ripple effects caused by the Rule's definitional changes counsels strongly in favor of maintaining the status quo for the time being." 9 (The Sixth Circuit was later reversed by the U.S. 7 Particularly important to the panel's decision was the need to prevent disruption of the status quo. The Sixth Circuit entered a preliminary stay in that case. Also like the ETS, the "Waters" rule was viewed as having a profound impact on a broad swath of society. Similar to OSHA's ETS, it was widely challenged by states and private groups. In 2015, it was selected to hear a consolidated group of challenges to the EPA's "Waters of the United States" rule.
This isn't the first time the Sixth Circuit has received a multicircuit case challenging a broad federal government policy.
FIFTH CIRCUIT COURT OF APPEALS CASES PLUS
Only active judges sit en banc (i.e., when all of the active judges decide the matter), plus any senior judge that was part of the original three-judge panel's decision.
So the three-judge panel for the case, which will be randomly selected, has many favorable permutations for the petitions. The current balance of the active judges on the court now favors Republican nominees, 10-6. However, the circuit's composition has changed dramatically over the last several years, with the addition of six Republican-appointed judges between 20. The Sixth Circuit was traditionally viewed as a middle-of-the-road or conservative-leaning district. The petitioners seeking to set aside the ETS are likely happy with their draw. 15, 2021.) The Sixth Circuit will have to decide whether the stay should be "modified, revoked, or extended." 5 But as for now, the ETS remains frozen. (See Holland & Knight's previous alert, " Fifth Circuit Extends Stay of OSHA's Emergency Temporary Standard on COVID-19 Vaccination," Nov. The Sixth Circuit also inherits the Fifth Circuit's recent nationwide stay on implementation and enforcement of the ETS. Petitions were filed in all 12 federal circuit courts of appeals and represent a wide variety of state and private interests. The Sixth Circuit inherits one of the broadest challenges to federal agency action in recent memory. In this situation, however, the Sixth Circuit's decision will be applied across the United States.
4 The Sixth Circuit covers Michigan, Ohio, Kentucky and Tennessee, and sits for its cases in Cincinnati. The Sixth Circuit will now hear the many consolidated challenges to the recent COVID-19 emergency temporary standard (ETS) issued by the Occupational Safety and Health Administration (OSHA). Court of Appeals for the Sixth Circuit was selected from a barrel of tumbling balls on Nov. "he clerk of the Panel shall randomly select a circuit court of appeals from a drum containing an entry for each circuit wherein a constituent petition for review is pending." 2 No circuit gets extra entries, and the drawing is witnessed so there's no cheating. When multiple parties sue a federal agency in different appeals courts, a special judicial panel consolidates the cases and selects one court to hear them all.
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