As soon as the Occupational Safety and Heath Administration’s emergency temporary standard (ETS) was published in the Federal Register on November 5, 2021, litigants raced to the courthouse to file multiple challenges to the rule.
On November 12, the U.S. Court of Appeals for the Fifth Circuit stayed the ETS pending further judicial review and directed OSHA to take no steps to implement or enforce the ETS until further court order.
But the Fifth Circuit’s order may be short lived depending on the results of a lottery set to take place as soon as November 16 to determine which circuit court will hear appeals in the numerous challenges in a consolidated manner.
Appeals are pending in the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 11th and the District of Columbia Courts of Appeals. As of November 14, only the U.S. Court of Appeals for the 10th Circuit did not have a pending appeal in an ETS challenge.
This week, likely on November 16, the Judicial Panel on Multidistrict Litigation will conduct a lottery to select which federal circuit will hear the consolidated litigation. The court to hear the litigation will be drawn “from a drum containing an entry for each circuit wherein a constituent petition for review is pending.” Each court only gets one entry; the number of petitions pending in a particular circuit does not increase its odds of being picked.
If the 5th Circuit gets picked, it’s clear that the ETS is in trouble. If a different circuit is chosen, the challenge starts afresh because that court will have the power to modify or nullify the stay issued by the 5th Circuit. So, place your bets.
One thing is certain: whenever the selected circuit court makes its decision, there will be another race – to the U.S. Supreme Court. In the meantime, the prudent employer will proceed with plans to implement the ETS, which is slated to become effective on December 5, 2021.