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The Sixth Circuit Caseįollowing the transfer to the Sixth Circuit, on November 23, 2021, OSHA filed an emergency motion seeking to dissolve the Fifth Circuit’s stay and allow OSHA to enforce the ETS while the Sixth Circuit decided the merits of the myriad challenges. On November 16, 2021, the Sixth Circuit Court of Appeals (the “Sixth Circuit”) was chosen to hear the ETS challenges and all of the various cases were transferred to that court. Due to the number of challenges in different circuits, the Judicial Panel on Multidistrict Litigation, a special body that manages multidistrict, federal litigation, consolidated the cases into one challenge before a single circuit chosen by random lottery. In addition to the Fifth Circuit litigation, states, private employers, and trade associations across the country filed similar challenges in virtually every United States Court of Appeals.

In that order, described in more detail here, the Court cited to “grave statutory and constitutional issues with the Mandate.” The Fifth Circuit then affirmed that stay in a more detailed order issued on November 12, 2021. 21-60845, granted the Petitioners’ emergency motion to stay the enforcement of the ETS. Occupational Health and Safety Administration et al., No. On November 6, 2021, two days after the Occupational Health and Safety Administration (“OSHA”) issued its highly anticipated COVID-19 Vaccine & Testing Mandate Emergency Temporary Standard (the “ETS”), the Fifth Circuit Court of Appeals (the “Fifth Circuit”) in B.S.T.

Footnotes for this article are available at the end of this page.