Posted on 11/16/2021 11:05:49 AM PST by MNJohnnie
A “multi-circuit lottery” is expected to be held this week that will determine the fate of the Biden administration’s vaccine mandate issued by the Occupational Safety and Health Administration (OSHA) which set a Jan. 4 deadline for an estimated 84 million private sector workers to be vaccinated against COVID-19 or be tested weekly and wear a mask.
At least 27 states, as well as private employers, religious organizations, and other groups, have filed lawsuits against the administration’s mandate claiming that it is exceeding its authority in issuing the mandate.
As a result, there are now OSHA-related lawsuits pending in the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Eleventh, and District of Columbia Circuit Courts. The Biden administration asked for the cases to be consolidated last week.
Despite this, the administration urged private business employers on Nov. 8 to comply with the vaccine mandate and asserted that halting the implementation of the OSHA rule could lead to the deaths of workers.
The lottery being utilized this week is part of a federal law that is often used in product liability and antitrust cases involving multiple lawsuits.
Under the law, multiple challenges to the OSHA rule that have been filed in separate courts will be consolidated in a single court of appeals, selected at random.
As per the Legal Information Institute, the “Judicial Panel on Multidistrict Litigation (JPML) shall, by means of random selection, designate one court of appeals, from among the courts of appeals in which petitions for review have been filed … in which the record is to be filed, and shall issue an order consolidating the petitions for review in that court of appeals.”
Each of the U.S. Circuit courts where challenges to the OSHA rule have been filed will each get one entry, regardless of the number of cases filed in each court.
According to Sean Marotta, a partner with law firm Hogan Lovells, the OSHA will e-file what is called a “Notice of Multicircuit Petitions for Review” with the JPML.
“This will include as appendicies a schedule of all lottery-compliant petitions (which may not be all petitions) and copies of each,” Marotta explained on Twitter.
“OSHA will file copies of the Notice in all of the circuits where petitions for review are pending and on counsel for all parties to the petitions for review,” Marotta said. The entries will then be placed in a drum and the JPML, based in Washington, D.C., will randomly draw one.
“The JPML will fire up the drum and ping-pong balls and draw a circuit at random,” Marotta said. The JPML is made up of judges, and the process is run entirely by the Panel Clerk’s Office, who will have a “selector” and “witness” for the drawing.
The “selector” and the “witness” will then prepare an order on behalf of the panel directing that the petitions for review be filed in the selected circuit and that the agency record be filed in that circuit.
It is expected that the lottery will take place on Tuesday and Marotta noted that the whole process “is all going to happen quickly.”
The results of the lottery and the subsequent courts’ ruling will effectively determine whether or not employers proceed with implementing the ETS starting Dec. 6, although there is still a possibility that the cases will make their way to the Supreme Court.
This is an easy to corrupt process and I trust Bare Shevles Biden regime not at all.
This will be completely corrupted.
I predict the 9th or DC court will “win”
I actually don’t think it matters very much. SCOTUS is going to be at least 5-4 in favor of striking down the mandate, and they will do so on an expedited basis if/when the selected Court vacates the order from the Fifth Circuit.
Been a real eye opening expereince to see just how fragile, and how easily corrupted, the rule of law is in the USA.
It should be 9-0 against this monstrosity
I have never heard of this. I always thought next step from the circuit was SCOTUS. John Roberts was probably looking forward to ducking the whole issue (like everything important) so he’s probably irritated that they found this process at the 11th hour.
If you read the 5th Circut decision they quote Roberts a whole lot in their Judgement against. I think they made it almost impossible for Roberts to duck on this one.
I call BS.
No way that is legal or constitutional and I don't give a crap what has been done in the past.
File lawsuits against this in itself.
https://www.jpml.uscourts.gov/
Sits in D.C.
This is a court-controlled process that takes only filed cases as input. No parties present, not either side, other than the court is more apt to be an extension of the government side than of those opposed to a government order.
Is this like Hillary winning 9 of nine coin tosses in the Iowa caucus?
"If an agency, board, commission, or officer receives two or more petitions for review of an order in accordance with the first sentence of paragraph (1) of this subsection, the agency, board, commission, or officer shall, promptly after the expiration of the ten-day period specified in that sentence, so notify the judicial panel on multidistrict litigation authorized by section 1407 of this title, in such form as that panel shall prescribe. The judicial panel on multidistrict litigation shall, by means of random selection, designate one court of appeals, from among the courts of appeals in which petitions for review have been filed and received within the ten-day period specified in the first sentence of paragraph (1), in which the record is to be filed, and shall issue an order consolidating the petitions for review in that court of appeals."
As for the specific procedure intended to ensure randomness, Rule 25.5(a) of the Judicial Panel on Multidistrict Litigation provides:
"Upon filing a notice of multicircuit petitions for review, the 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. Multiple petitions for review pending in a single circuit shall be allotted only a single entry in the drum. A designated deputy other than the random selector shall witness the random selection."
As for the aforementioned JPML, the Chief Justice selects the members. The current members of the panel are:
Karen K. Caldwell, Chair, Eastern District of Kentucky
Catherine D. Perry, Eastern District of Missouri
Nathaniel M. Gorton, District of Massachusetts
Matthew F. Kennelly, Northern District of Illinois
David C. Norton, District of South Carolina
Roger T. Benitez, Southern District of California
Dale A. Kimball, District of Utah
There are many possible paths in most issues-oriented litigation.
This case is especially weird because OSHA/ETS has original jurisdiction in Circuit Courts. ETS have a life of six months, and final rules that are the same as ETS are litigated first in District Courts. Those are commonly consolidated too.
Of course, the lottery will be rigged to put it into the Ninth Circus. However, there are Trump appointees there, so the game may have changed.
They stole a PRESIDENTIAL ELECTION; they can't steal a multi-circuit court lottery? OF COURSE THEY CAN.
Why? The 5th Circuit wrote a BEAUTIFUL ruling against the Mandate last Friday, smacking down the “Biden” Administration so hard they’re seeing stars.
Look, the government gets to decide if somebody can them. It's called sovereign immunity. Only when Congress by statute specifically waives sovereign immunity in a given circumstance can anybody even get to court in the first place.
People are under the mistaken impression that the "rule of law" is intended to preserve individual liberty or something. That isn't true. The rule of law exists to preserve civil order. Individual liberty is preserved, if at all, by different means.
Anyone thinking that the judicial system itself exists to preserve freedom has a fundamentally mistaken view of how our system of government works, and how it doesn't work.
Remember this, per Thomas Jefferson? "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." The man knew what he talking about. He wasn't just blowing smoke.
“Random.” Right. My guess is it winds up in the Ninth.
It looks like the 10th Circuit is slacking off with no lawsuits. 5th, 6th, 7th, 8th, 11th and maybe 4th look promising.
“I always thought next step from the circuit was SCOTUS.”
a) The losing party appeals the Circuit’s decision, and the Supreme’s decide to take on the case (which is less likely than #2); or
b) There’s a conflict of results between the Circuits, and the SC takes the case so that the legal/Constitutional principle is uniform throughout the nation (more likely, but not even close to 100% likely to be taken up by the SC).
My own personal opinion is that there are several key issues, and so many people and entities involved, that the Supremes pretty much HAVE to take this case. That’s what happens when you have the federal government REALLY pushing the envelope (or, as is my opinion in this case, completely destroying the envelope and moving well beyond any authority granted to it in the Constitution) - many people challenge it and the courts HAVE to address the issue.
Now, if the Circuit chosen “at random” (and I don’t believe that anything is random when dealing with federal authority) happens to rule consistent with the 5th Circuit, then it is game over for this particular mandate, and anything like it for a long, long time. I would still, however, like to see the Supremes weigh in and kill it, and to enumerate the multitude of reasons why a mandate like this is both illegal under current federal law AND also unconstitutional for several distinct reasons. That would be a stake through the heart of the “medical tyranny” model.
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