Yesterday, November 16, the U.S. Judicial Panel on Multidistrict Litigation (the “Panel”) held a lottery to select the federal appeals court to address the 34 petitions seeking review of the COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”). Since the ETS was published on November 5, 34 petitions had been filed in 12 different federal appeals courts seeking relief from the ETS. Such legal actions were filed by state attorneys general, employers, unions, and other organizations.

As a result of yesterday’s lottery, the U.S. Court of Appeals for the Sixth Circuit was randomly selected. The Sixth Circuit has 20 judges appointed by Republicans and six appointed by Democrats. Of the active judges in the Sixth Circuit, five were appointed by President Bill Clinton or President Barack Obama and the other 11 active judges were appointed by President George W. Bush or President Donald Trump. The consolidated cases will be assigned to a randomly selected three-judge panel of the Sixth Circuit.

The Sixth Circuit three-judge panel will then decide how to proceed in the face of the Fifth Circuit decision handed down on November 12. The Sixth Circuit panel can choose to agree with the Fifth Circuit stay order, modify it, or vacate the Fifth Circuit’s decision and issue its own order.

Whatever decision the Sixth Circuit panel reaches in ruling on these 34 pending legal actions, the U.S. Supreme Court is likely to have the final say on the ETS and whether it's valid and enforceable.

In addition to this development, Federal-OSHA announced today on its web page that it has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation. This announcement would lead one to believe that if, following the present litigation, the ETS is found to be valid and enforceable by the Sixth Circuit panel, Federal-OSHA may publish new time deadlines to comply with the ETS provisions.